Seanad Éireann - Volume 188 - 11 March, 2008

Defamation Bill 2006: Report and Final Stages.

  An Leas-Chathaoirleach: Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion on the amendment. Also, on Report Stage each amendment must be seconded.

  Senator Eugene Regan: I move amendment No. 1:

In page 7, lines 1 and 2, to delete all words from and including “except” in line 1 down to and including “implication)” in line 2.

  Senator Alex White: I second the amendment.

  Senator Eugene Regan: This amendment reflects a concern I expressed on Committee Stage. The Minister indicated at the time that it is a question of the retrospective nature of the legislation. Section 3(2) currently states:

A provision of this Act shall not affect the operation of the general law in relation to defamation, in force immediately before its commencement, except to the extent that that provision provides otherwise (whether expressly or by necessary implication).

I wonder whether the final sub-clause needs to be included. When the Minister explained the position on the last occasion, he said he would be happy to ask the Office of the Parliamentary Counsel to examine the issue I raised. I wonder whether the position has changed as a result of that reflection.

  Deputy Brian Lenihan: The position has not changed. I am glad the Senator has given me an opportunity to put the position on the record of the House. During the Committee Stage discussion on section 3(2), Senator Regan sought clarification on the last part of that provision, which appears to provide for retrospection. I agreed to re-examine the wording of the section. The amendment before the House proposes to delete the latter part of section 3(2).

  Senator Eugene Regan: Yes.

  Deputy Brian Lenihan: The advice of the Office of the Attorney General and the Office of the Parliamentary Counsel was sought. I was [1724]advised that this is a standard drafting provision and that no change is required to the text. The purpose of section 3(1) is to ensure that when this legislation is enacted, it will not have retrospective effect. Clearly, it has to speak from the time of its commencement. Section 3(2) is designed to ensure that the general law relating to defamation — the definition of what constitutes “publication”, for example — will remain in force unless expressly abrogated or superseded by the Act. It is putting in place some sort of presumption in favour of the existing law. That is really the advice received on the amendments.

  Senator Eugene Regan: I thank the Minister for that clarification.

Amendment, by leave, withdrawn.

Amendment No. 2 not moved.

  Senator Eugene Regan: I move amendment No. 3:

In page 9, to delete lines 43 and 44.

  Senator Alex White: I second the amendment.

  Senator Eugene Regan: The Minister responded when I raised the matter of declaratory orders on Committee Stage. Can he clarify the position at this juncture?

  Deputy Brian Lenihan: This amendment proposes the deletion of section 7(13), the purpose of which is specifically to disallow the application of the section in the context of declaratory order provisions. In other words, one will not need a verifying affidavit in such cases. The reason for this measure is that it is clear that applications for declaratory orders are not the same as normal defamation actions — no damages can be sought, for example. Any application for a declaratory order must be grounded in an affidavit. This is specifically provided for in section 26(5). The requirement that the applicant for the declaratory order has to give some sworn averment is provided for in section 26(5), which states that any “application under this section shall be brought by motion on notice to the respondent grounded on affidavit”. Section 7 sets out the position in the case of a plaintiff in a defamation action who serves a pleading containing assertions of fact and the pleadings which are exchanged in a claim for damages. The issue is addressed in a different section of the Bill.

  Senator Eugene Regan: A verifying affidavit will be required, in a sense.

  Deputy Brian Lenihan: It will be required under the section of the Bill relating to declaratory orders.

  Senator Eugene Regan: Very good.

[1725]Amendment, by leave, withdrawn.

Amendment No. 4 not moved.

  Senator Eugene Regan: I move amendment No. 5:

In page 10, to delete lines 17 to 20 and substitute the following:

“(3) In this section “multiple publication“ means publication by a person of the same defamatory statement in two or more of his or her media publications whether contemporaneously or not.”.

  Senator Alex White: I second the amendment.

  Senator Eugene Regan: We discussed the definition of “multiple publication” on Committee Stage. There was some concern about the appropriateness of the definition. Has the Minister had an opportunity to consider the matter? We had a lengthy debate on the subject. I have proposed an alternative definition which, I believe, reflects the intention. I would like to hear the Minister’s views on it.

  Deputy Brian Lenihan: The advice available from the Attorney General’s office and the parliamentary counsel is that the provision, as drafted, is clear in providing that a person has a single cause of action in relation to multiple publications subject to subsection (2) where the court may grant leave to a person to bring more than one defamation action in respect of a multiple publication where it considers that the interests of justice so require and the definition in subsection (3).

The general rule is that only one cause of action will lie in respect of a multiple publication by a person of the same defamatory statement whether made contemporaneously or not. This is designed to prevent a person taking a defamation action as a result of an article published in a paper, which is read by a certain number of persons on that day, from returning to take a further action in a few years’ time because another person who finds the old copy of the paper reads the article and tells the person in question that he or she is angry or upset by the content of the article. It would be clear from the circumstances involved that it is still the same publication and not a republication.

It does not affect the multiple publication by a number of different persons of the same or similar defamatory statement. In that instance, more than one cause of action would result. The proposal from Senator Regan does not add any additional clarity and I do not see any reason for its inclusion in regard to the ownership of publications and the nature of publication of defamatory statements.

[1726]  Senator Eugene Regan: I am sure the courts will ultimately clarify the position. I will not press the amendment.

Amendment, by leave, withdrawn.

  Senator David Norris: I move amendment No. 6:

In page 10, to delete lines 21 to 25.

  Senator Eugene Regan: I second the amendment.

  Senator David Norris: This refers to the troubled business of the corporate body. I do not propose to take up a huge amount of time on this but it is odd that a corporate body is assumed to have feelings. I have said this a number of times in the past. The Minister pointed out previously that, for example, my own august institution, the College of the Sacred and Undivided Trinity near Dublin, might be defamed without incurring any financial loss and that would be a great shame. I am confident it could defend itself well with the public relations skills it has and with the employees it has for that purpose.

We are principally talking about large corporations such as Shell which is a filthy, nasty environmentally unfriendly conglomeration. In situations where people make statements about it and where there is no financial damage to it which, to be fair, is all it is interested in, I do not see why it should be in a position to take action as a corporate body. I am not interested in the feelings of Shell or of McDonald’s which used defamation legislation to attempt to crush a couple of ordinary citizens who made statements about its operations with which many people agreed.

Without wishing to take up too much of the time of the House, those are the reasons I tabled this amendment. I will be interested to hear if the Minister has had any reason to ponder. I am not sure if this is one of the matters on which he said he would come back to the House.

  Senator Eugene Regan: My intention in tabling this amendment was not to over-rule the existing common law where a company can sue for defamation but whether it must prove special damage. In other words, the penultimate clause is whether it has incurred, or is likely to incur, financial loss as a result of the publication of that statement. That is where the change lies. The Minister has relied on a decision of the House of Lords to justify another innovation in this Bill, and I refer to the Jameel v. The Wall Street Journal case. I wish to quote two of the Lords in this case. Lord Hoffmann, in paragraph 91, states:

In the case of an individual, his reputation is a part of his personality, the “immortal part” of himself and it is right that he should be entitled to vindicate his reputation and receive [1727]compensation for a slur upon it without proof of financial loss. But a commercial company has no soul and its reputation is no more than a commercial asset, something attached to its trading name which brings in customers. I see no reason why the rule which requires proof of damage to commercial assets in other torts, such as malicious falsehood, should not also apply to defamation.

In the United Kingdom, one does not have to prove special damage. Baroness Hale of Richmond stated:

It seems, therefore, that while the retention of the rule that a company does not have to show that it has in fact been harmed in any way may be within our margin of appreciation, we should scrutinise its impact with some care to see whether it may have a disproportionately chilling effect upon freedom of speech.

In paragraph 155, she also pointed out that:

Lest it be thought that these are maverick academic views, it should be noted that amongst the recommendations of the Report of the [Faulks] Committee on Defamation (1975, Cmnd 5909, para 342) was the proposal that:

“(a) No action in defamation should lie at the suit of any trading corporation unless such corporation can establish either — (i) that it has suffered special damage, or (ii) that the words were likely to cause it pecuniary damage.....

The Faulks Committee were influenced by Mr Weir’s views [etc.].....

“A company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money. The injury need not necessarily be confined to loss of income. Its goodwill may be injured.”

The need to prove financial loss, or the likelihood of financial loss, should be a requirement for a corporation to sue for defamation. I do not believe we should change the law in that regard.

  Deputy Brian Lenihan: Senator Regan has not framed an amendment——

  Senator Eugene Regan: I appreciate that.

  Deputy Brian Lenihan: ——which would address the matter he raised, namely, the requirement of proof of special damage in the event of a corporate plaintiff. There was some debate on this section on Committee Stage and I undertook to have another look at it. The Attorney General indicates that recent case law in the United Kingdom has made it clear there is nothing wrong in legal principle in having a cause of action for a body corporate to sue for defamation whether it incurred, or is likely to incur, financial loss. Inci[1728]dentally, on the technical question of whether one requires a definition of a body corporate, the parliamentary counsel states that the Interpretation Act 2005 applies to that.

Senators have been very critical of this provision but an individual plaintiff who is a natural human being does not have to prove loss in the case of a defamation and libel as distinct from slander. Section 11 was recommended by the legal advisory group but it did not address the merits of the proposal. The Law Reform Commission did so and stated that under existing law, trading and non-trading corporations appear to be capable of suing in defamation in respect of defamatory allegations concerning their business capacity and more general allegations relating to trading and the treatment of employees or their sponsorship of public events.

For us to accede to Senator Norris’s amendment would not simply be to refuse to confer something new on a body corporate but it would be to withdraw a right which bodies corporate have in existing law. Senator Norris essentially said a company should not be allowed to sue. It is true that a libel action dies with the natural human being whereas a company can have a perpetual existence. No doubt the lapse of time would qualify any amount of damage for which they could sue for past excesses.

On the point Senator Regan raised of limiting actions by bodies corporate to claims for financial loss, the Law Reform Commission took the view that there can be harm caused by a defamatory statement which would be almost impossible to prove. The financial loss caused to a defamed company could be as a result of individuals or bodies deciding not to trade or associate themselves with it, which is a notoriously difficult type of loss to prove.

The provenance of this provision is a recommendation that there be no change in the existing law but that for the avoidance of doubt there should be a statutory provision confirming that all corporate bodies have a cause of action in defamation irrespective of whether financial loss is consequent upon the publication.

There is no authority on that point in this jurisdiction but it seems that if one recognises the body corporate as an entity which at least has a reputation — part of Senator Norris’ argument seemed to proceed from the assumption that many bodies corporate do not have a reputation worth protecting — one has to assume that they are entitled to sue on it.

  Senator David Norris: I indicated that we would have to get on with the business today. Some of my passion has been diluted by the decision in the Sunday World case. I had thought of testing the waters with a bit of a gamble to see if the Cheltenham effect had weakened the Government side, where it was likely to be most pronounced, but I recognise the extraordinary [1729]vote management of which Fianna Fáil is capable so I will not push the matter to a vote.

Amendment, by leave, withdrawn.

  An Leas-Chathaoirleach: Amendments Nos. 7 and 10 are related and will be discussed together by agreement.

Government amendment No. 7:

In page 11, line 33, to delete “Without prejudice to the generality of subsection (1)“ and substitute the following: “Subject to section 11(2) of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, and without prejudice to the generality of subsection (1)”.

  Deputy Brian Lenihan: These are Government amendments arising out of the debate on Committee Stage. Section 15 provides for absolute privilege for witnesses appearing before Oireachtas committees. On Committee Stage Senators raised some concerns as to the drafting of the provision. Following advice received from the Office of the Attorney General I propose to amend subsection (2) to make it subject to section 11 subsection (2) of the Committees of the Houses of the Oireachtas Compellability, Privileges and Immunities of Witnesses Act 1997. That section provides:

If a person who is giving evidence to a committee in relation to a particular matter is directed to cease giving such evidence, the person shall be entitled only to qualified privilege in relation to defamation in respect of any such evidence as aforesaid given after the giving of the direction unless and until the committee withdraws the direction.

That amendment reflects the reality of the position in regard to privileges of witnesses appearing before Oireachtas committees. Amendment No. 10 has been proposed following consultation with the Parliamentary Counsel to improve the text to ensure that all Oireachtas committees, including sub-committees or joint committees, are so covered.

Senators Norris and Walsh raised an issue on which I indicated that I might consult with the Committee on Procedure and Privileges but in fact the Office of the Attorney General agreed with the Senators which is why I am tabling these amendments.

Amendment agreed to.

  An Leas-Chathaoirleach: Amendment No. 8 arises out of Committee Stage proceedings. Amendment No. 9 is an alternative, therefore, amendments Nos. 8 and 9 may be discussed together by agreement.

[1730]  Senator David Norris: I move amendment No. 8:

In page 12, to delete lines 3 and 4.

I thank the Minister for graciously acknowledging the work previously done in the Seanad on this matter. The amendment concerns judges and I table it in the light of an experience I had many years in the courts where I used to attend fairly regularly. Certain judges made a habit of making the most derisory, cutting, defamatory and humiliating remarks about people who were in situations where they could not defend themselves. The Minister, however, replied comprehensively on that occasion and I was almost battered into submission, but there is perhaps scope for a book of practice or etiquette to ensure that judges do not do this. I read in the newspapers that from time to time they still do so. This is very regrettable, particularly for the weaker members of our society. This was not only my observation because at that time Nell McCafferty, in her excellent column “In the Eyes of the Law”, drew attention to the very practices that I deplored then and still do. I will be interested to hear what the Minister has to say on this matter.

  Senator Eugene Regan: I second the amendment.

I have not gone so far as to propose deleting the lines but in my amendment I propose using the phrase “in the course” of performing a judicial function. This makes clear that any statements made by a judge in performing his duties or making a ruling, etc., are confined and circumscribed in some shape or form, and that they relate to the case. This is an effort to deal with Senator Norris’ remarks on Committee Stage that at times extraordinary statements are made in the course of cases.

  Deputy Brian Lenihan: Many of the Senators who spoke on Committee Stage agreed that absolute privilege should attach to statements made by the Judiciary in court and that is essential for the effective operation of the judicial arm of State. In Senator Regan’s amendment the additional words are not necessary to qualify the performance of a judicial function but cast doubt on it and open an undesirable vista.

Senator Norris did not press the amendment on Committee Stage and was especially interested in the current status of the judicial council Bill. At that stage the Chief Justice had not replied to me about that Bill. I have since, however, received certain information from the Chief Justice and a working group has been established to advance the Bill, comprising a nominee of my Department and of the Chief Justice so I am optimistic that the Bill can be finalised.

Senator Norris makes the fair point that a code of ethics for judicial utterances can be formulated. It is a matter for the Judiciary to regulate its business under the Constitution but I have [1731]made clear to the Chief Justice that I believe that this is sensitive legislation which I look forward to introducing in this House and believe I will do so in the lifetime of the Government. We must be careful, however, to respect the independence of the Judiciary while ensuring that collective standards of discipline inform it.

  Senator David Norris: I very much welcome the Minister’s indications regarding the progress of the other Bill and the response that he received. In those circumstances I will not press the amendment.

Amendment, by leave, withdrawn.

Amendment No. 9 not moved.

Government amendment No. 10:

In page 12, to delete lines 27 and 28 and substitute the following:

“(l) made in proceedings before a committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas,”.

Amendment agreed to.

  An Leas-Chathaoirleach: Amendments Nos. 12 to 15, inclusive, are alternatives to amendment No. 11, therefore, amendments Nos. 11 to 15, inclusive may be discussed together by agreement.

  Senator David Norris: I move amendment No 11:

In pages 14, 15 and 16, in page 14 to delete lines 40 to 43, in page 15 to delete lines 1 to 42 and in page 16 to delete lines 1 to 9.

This is the matter of the defence of honest opinion which goes to the crux of the reservations many of us have about this Bill. It is not sufficient for somebody to think that something may be true and to honestly believe it. One can honestly believe something that is untrue. Whether one can honestly believe a lie is a slightly different point but one can in fact because it may not be a lie told by oneself. Somebody else may have told one the lie which one then prints. It is not enough to say that one thought it was true and believed Old Joe because he is a decent bloke and put it in a newspaper.

It gets worse. Section 18(2)(a) says if: “at the time of the publication of the statement, the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true”. This is believing that someone else believed something else to be true and it is like a hall of mirrors. One never quite knows where it is going to end. I am against this business of honest [1732]opinion and the related matter of good faith. What is published, either in the broadcast or print media, should be true, and to believe that someone else believed it to be true does not seem to be a good reason for publication.

  Senator Eugene Regan: I second the amendment. I am speaking on the alternatives. My amendments relate to a rewording rather than a deletion, to try to insert some objectivity into the test such that “It shall be a defence ... to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held.”. I suggest that at the time of the publication of the statement, the defendant reasonably believed in the truth of the opinion. Simply to say that the defendant believed is too simplistic and too subjective. I also suggest that where the defendant is not the author of the opinion, he or she must have reasonably believed that the author believed it to be true.

As Senator Norris indicated, the notion that someone else told one that he or she believed the matter to be true is very subjective. If I understand the text, paragraphs (a),(b) and (c) are cumulative. I wonder whether an “and” after (a) might not make that clearer. Also, there is a certain defect in this in that there is no reference, as has been said, to the issue of good faith, malice or improper purpose. We shall be discussing section 24 later, but this section 18, which is replacing the defence of fair comment, obviates in large measure the need for section 24. However, that is a matter I shall address later.

  Senator Alex White: I understand the argument made by Senator Norris in respect of this provision. On this occasion, as on the last, I respectfully must disagree with him. As I indicated when this was discussed on Committee Stage, the widest possible latitude must be given to the media in respect of the publication of opinion consistent with fundamental principles, such as the right of a plaintiff or a citizen to challenge or, if there is a breach of the provision we shall put in place, to bring an action to court.

However, I do not agree that this section is in some way undermined or at least it is open to question in the manner in which Senator Norris says it is. I understand his argument that a newspaper, for example, could set up a defence of something it published and say in effect: “We’re not claiming that this is true, but we have been told that it is, and therefore we have a good defence.” That is not, in fact, what this section proposes. We are talking here about a mixture of fact and opinion. This is a section dealing with honest opinion. It is saying, in effect, that if the person who expressed the opinion can show that he or she honestly held it, however strange, excessive, radical or odd it might be, that position should be protected. That should be an important principle in our law. In fact, to date, it has been [1733]essentially what has applied. There are some changes because as Senator Regan said, the defence of fair comment is being replaced by a renamed and somewhat amended defence of honest opinion.

One cannot apply the same principles to an allegation of fact as may be applied to the expression of an opinion. They are two different things. We are right in our laws to distinguish between an honestly held expression of opinion on the hand or a statement of fact on the other. They must be characterised as two different things. Our laws traditionally have given a fair measure of protection to the expression of opinions and we should continue to uphold that, whether in the political, journalistic, financial world or whatever. If articles are written or programmes produced and aired on radio or television in which people express opinions, however odd, strange, excessive or mad, even, they may be, and we often might think something is mad on the grounds that the opinions expressed are deeply offensive, annoy, irritate or make us angry, our media law ought to allow for the expression and publication of such opinions in circumstances where they are truly and honestly held, however excessive they may be. That is what this section attempts to do.

While I do not suggest Senator Norris has done this, it would be a mistake for us in our general approach to this section of the legislation to confuse the question of a statement of fact on the one hand with the expression of opinion on the other. The law should continue to give a wide latitude to the expression of honestly held opinions.

  Senator Jim Walsh: Significant changes in defamation law to a large extent hinge on this section and the section on honest opinion. We have debated it back and forth and have probably gone as far as we are likely to get with it. Nonetheless “believed” is a very subjective word. I have raised the fact before that “defendant” is not defined in the Bill. As a consequence, that creates a lacuna which might be exploited.

Let us take the example of a person who is seriously defamed and the commentator who wrote the offending article knew he or she was defaming the person, yet the editor genuinely believed that what was said was the writer’s honest opinion. If the defamed person subsequently takes a case, who is the defendant? I suggest it is the newspaper, probably represented by the editor. As we have not defined “defendant” sufficiently, it creates a situation whereby damage can be done to a person’s reputation without him or her effectively being able to get recourse subsequently to this being corrected. This a major change in the legislation and I know it is being sought by the media.

To some extent I accept that the freedom of the press is an essential part of the democratic process. This must be weighed in the scales when we are trying to achieve a balance. One of the [1734]difficulties is that we can have views on this but they really only manifest themselves subsequently in case law.

The wording in the original draft of the Bill was ambiguous but the Minister made an amendment on Committee Stage to address it. However, I am not 100% satisfied with it for the reasons I have outlined and given that the truth can be subjective. If the facts substantiate an article, that is fine, but if they do not, it is not a particularly strong defence for its author to claim subsequently that he or she believed his or her remarks to be true. Perhaps we are depending too much on judicial discretion.

In light of the amendment made by the Minister on Committee Stage, I will withdraw my amendment, No. 15.

  Senator Eoghan Harris: I concur with Senator Alex White on his distinction between opinion and fact. I was indisposed during the earlier Stages of this Bill but, on the occasions on which I could have contributed, I felt I would have been regarded as having had a vested interest. However, I must speak on the question of fact and opinion simply because I have been astounded in recent weeks by the absolute determination of politicians of all parties to trammel and limit, in every niggling way, the work of the press. A myth is being created in so many of these amendments about the small man in a shop who has his reputation defamed and who has no recourse against the great barristers, the O’Reillys, RTE and the great corporations. I worked for 25 years in RTE and never encountered such a small man. I encountered programme after programme that wished to expose exploitation in respect of the sweepstakes of the Irish Hospitals Trust and pension funds, and by rogue solicitors and gangsters continually protected by the libel laws.

I work in a newspaper in which the business of the libel lawyers is a matter not of law but of risk management. This is the case with all newspapers. Mischievous letters demand apologies and they are followed immediately with demands for damages. Surely politicians, who comprise the most litigious of all groups, should be more careful to ensure they protect the press. Surely the events of recent weeks would make politicians realise the reputations of no small men have been defamed. A man with a long criminal record has been awarded almost €1 million in damages and the jury was not allowed to be told about this that and the other, which matters would have brought themselves to bear in any fair-minded court. One of Ireland’s wealthiest men was awarded €750,000. The Supreme Court lowered the award but it was increased again because the jury was not allowed to be told about that court’s intervention.

The reality of life is that none of the activities of the rogue solicitors, rogue capitalists, gangsters and criminals, who have names such as “the [1735]Viper” and “the Tosser” and whom Paul Williams has been exposing for years, would have been exposed if the politicians had their way. In the approach to this Bill — I do not refer to the detail of the Bill as it is good and long overdue — there seems to be no good will by politicians to back a free press.

I have never sued anybody in my life. One should look at the Internet some time to see the entries on me. They include references to death sentences and murder and suggest I should be run out and abused. This is a small country and it is almost impossible to lose one’s reputation in a small country; everybody knows one and knows pretty much when lies are being told. The Earl of Clarendon stated libels are best dealt with by being ignored and by being ignored they appear not to be deserved. There is a lot of truth to this in a small country.

Politicians, who comprise one of the most litigious and sensitive groups, should be particularly careful not to convey the impression to the public that they are trying to trammel the press further. This is a good Bill but I fear there is a privacy Bill behind it. The daily life of a newspaper, be it The Irish Times, The Star or the Daily Mail, involves an endlessly difficult struggle to get the truth printed. What newspapers need is help and not trammelling, manacling and dragging down.

Senator Alex White rightly stated facts are sacred and comment is free, but when one is dealing with rogue solicitors or criminals, it is very important to be able to say that such and such a criminal is hanging out with another criminal and has been doing so for ten years, thus resulting in the reasonable opinion that a third party, who is with those criminals all the time, is in fact a dodgy customer. This may not be a matter of fact but any reasonable person will assume that if one habitually hangs around with criminals, one has no good intent.

In this regard, consider the Ferns case. This story would not have emerged if many politicians, of both Houses, had their way. They would have introduced laws to prevent the publication of the facts and opinions necessary to throw light on the extraordinary events surrounding Fr. Fortune in Ferns.

In the cases I can recall, including that of the money lending tribunal and the Irish Hospitals Trust sweepstake, in addition to those involving Denis O’Brien and Michael McDonagh and the recent ones involving rogue solicitors, all I see are strong people. In a society in which anybody can approach a solicitor on a “no foal, no fee basis” to take a mischievous case, there is no particular danger to the small man. The case of the small man that is being posited is mythical. What goes on in both Houses regarding the libel laws and the privacy Bill shows excessive concern for the proprieties of politicians.

This is an open democracy. Provided there is genuine freedom of the press, an adequate apol[1736]ogy system and adequate freedom of discourse, we should take a bit more of the rough with the smooth and stop trying to crush press freedoms, which, in the fine analysis, we have seen to be the foundation of freedom so many times in our democracy.

  Senator Maurice Cummins: I have supported this Bill from the very beginning and have had reservations regarding some aspects. However, I could not agree with Senator Harris on the small man not being hit because it is he about whom I am worried. I am not worried about the criminals and other individuals to whom Senator Harris and others referred.

Not so long ago, a colleague of mine went to America where it was plastered over the newspapers that he had struck his wife and engaged in other activities. This never happened. The man in question is a small man and I am in favour of amendments tabled to protect the small man.

As I and Senators Walsh and Norris can testify, we debated this Bill inside out on Second and Committee Stages during the term of the last Seanad. It is the small man I am interested in protecting rather than those mentioned by Senator Harris. I have no interest whatsoever in the latter individuals.

  Deputy Brian Lenihan: I agree with Senator Alex White on this section. There was always a defence in our law of fair and reasonable comment on a matter of public importance. All that this section is doing is restating that well-established defence in a more elegant way in terms of honest opinion, which always comprised the gist of that defence. That is the purpose of the section.

I was concerned when I heard Deputy Norris construe the section——

  Senator David Norris: Deputy? I resist that demotion to the Lower House.

  Deputy Brian Lenihan: It is introducing an innovation in our law.

The philosophy of this Bill is very clear. As Senator Harris pointed out, we must have a free press, but a free press is not entitled to abuse the reputations of individuals by the publication of falsehoods. When one analyses what is a falsehood — clearly it can be an untrue fact — and when one enters the realm of opinion, “Comment is free but facts are sacred” has always been the old dictum and that has always been reflected in the law. We are not speaking of facts here. We are speaking of opinions.

A few weeks ago Senator Norris, speaking outside this House, stated that the legislation on same-sex couples I was preparing gave nothing better than a dog licence to those affected by it. That is a statement of opinion——

[1737]  Senator David Norris: I did not defame the Minister. He is not a dog.

  Deputy Brian Lenihan: ——honestly arrived at and therefore I cannot sue Senator Norris for that even though I would suggest there is no underlying factual basis for the assertion that he made.

  Senator David Norris: Read Senator “Mansewerage”.

  Deputy Brian Lenihan: In any event I agree with Senator Harris’s philosophy in this matter, that it is not worthwhile to sue newspapers, but that is purely a personal point of view. We all have an interest in this matter. We all are public figures. There is one ex-barrister, two current members of the Bar and two journalists present, one of whom also happens to be a legal practitioner.

  Senator David Norris: Three journalists.

  Deputy Brian Lenihan: Three journalists, excuse me. There is quite a proliferation of interested parties around this House.

In this legislation we must ensure respect for those two fundamental principles — the right of the individual to his or her reputation and the absolute right of the press in a free society to publish freely about matters. Within that framework we must achieve another purpose, namely, to stop the present position where an individual, to vindicate his or her rights, must spend a long time in the Four Courts to arrive at a verdict after what can be traumatic court proceedings. That is why we have these procedures for accelerated apologies and for some sort of certainty on damages. In my view, that is an entirely reasonable proposal.

Section 18 provides for the defence of honest opinion. It replaces the current defence of fair comment. Under the present law fair comment is available where it is being pleaded that the alleged defamatory words were fair comment or expressions of opinion as opposed to fact. It is the same with this section. We are making it clearer that it relates to opinion, not facts. The deletion of this section, as proposed by Senator Norris, would be a revolutionary change from the current law, and I cannot support it for that reason alone.

Senator Regan has mooted amendments Nos. 12 and 13. The additional words proposed do not add to the understanding of the pleaded defence. Senator Regan is trying to introduce the concept of reasonableness, that if a defendant claims he or she believed an opinion then that is the opinion. Opinion rests on belief, not on reasonableness. That also would introduce a dramatic innovation in the law. I happen to think Senator Norris’s characterisation of my legislative labours was highly unreasonable but I do not believe that I should be entitled in a defamation action to go to a court and try to prove the considerable unreasonableness of his opinion. We must be [1738]careful in this area. We are not doing anything in this section that involves a radical change in current law. Senator Jim Walsh fairly acknowledged that I had addressed his concern about the lack of clarity in the original formulation in an amendment I tabled on Committee Stage.

It is important that we realise that this is not new law. It is existing law that, in the case of opinions, an opinion honestly entertained does not land one in a liable action. That, to me, has always been the law and seems a reasonable provision.

  Senator David Norris: It was worth tabling the amendment to have provoked so vigorous an assertion of the freedom of the press from Senator Harris. He did it with his usual flair and panache. On the dog licences, if the Minister has a look at the speeches of Senator “Mansewerage” he will see exactly what I was at.

  Deputy Brian Lenihan: Was it said outside the House?

  Senator Jim Walsh: On a point of order, that is approximately the fourth time that a disparaging reference has been made to Deputy Mansergh in the Lower House. It is out of order. Senator Norris should correct it and should refer to the Deputy by his proper name. I know why he is doing it and it brings no credit to the Senator or the reasons for which he is doing it either.

  Senator Eugene Regan: It is an honest opinion.

  Senator David Norris: It is an honest opinion.

  Senator Jim Walsh: It is not an honest opinion.

  Senator David Norris: I apologise for my accent.

  Senator Jim Walsh: It is entirely to do with the contribution which Deputy Mansergh made in the Lower House on civil partnership, which he was entitled to make. I subscribe to many of the views he made. Members here who regard themselves as liberals are very much subjective about to whom that refers.

  An Leas-Chathaoirleach: Senator Walsh has made his point.

  Senator Jim Walsh: I would ask that it be corrected. It is wrong that we would refer to anyone in those terms here and this is the fourth time it has happened.

  Senator David Norris: It is not. If Senator Walsh checks the record he will find that I made that initial mispronunciation some years ago and I continued it in the House. It had nothing whatever to do with what happened in the other House. I just linked it now. If he checks the record, he will find that.

[1739]  Senator Jim Walsh: The first time Senator Norris made it was in reference to that particular matter.

  Senator David Norris: Check the record and find it. I gave Senator Walsh a wonderful opportunity to align himself with those views. There we are. I am all in favour of free speech and I welcome the fact that I was able to let Senator Walsh put on the record his position on it.

  Senator Jim Walsh: A Leas-Chathaoirligh, it must be corrected.

  Senator David Norris: Now let us get back to the Bill.

  Senator Jim Walsh: A Leas-Chathaoirligh, it must be corrected. Otherwise, we all are in a position to insult Members of the Lower House in whatever way we see fit.

  An Leas-Chathaoirleach: The Chair did not hear exactly what Senator Norris said. I am leaving it in Senator Norris’s hands. If he wants to withdraw it or apologise,——

  Senator David Norris: In that case I shall make sure to amend my pronunciation in future. I regret if it caused considerable distress to Senator Walsh, but I do not believe that for a minute.

  Senator Jim Walsh: It is not distress. It is a matter of the decorum of the House.

  An Leas-Chathaoirleach: Senator Norris without interruption.

  Senator Jim Walsh: Senator Norris has been a Member longer than I have been and should be familiar with the rules.

  Senator David Norris: I have discussed this on the air with the person involved and it did not bother him at all.

  An Leas-Chathaoirleach: Senator Norris to continue.

  Senator David Norris: Senator Walsh is just a squall of hot air.

  Senator Jim Walsh: Senator Norris would be an expert on that topic.

  Senator David Norris: Getting back to the matter at hand, with the permission of Senator Walsh, one of the matters about which I was worried was that it seemed it was possible that someone might preface their words by saying, “In my opinion”, and I referred to a comedienne at the time who was using “allegedly” to protect herself against libel.

We also ought to remember that there are people being defamed. Whether they are small [1740]men or women, fat men or women, or tall men or women, we should remember that there is an object of this defamation. There is also always the horrible prospect, which my good friend Senator Walsh may find too horrifying to contemplate, of perjury. They could be lying. As any good geologist will say, schist happens. This does occur from time to time.

In addition, I am a little confused about section 18(2)(b)(ii), which states that an opinion is honestly held if it was based on allegations of fact to which the defence of absolute privilege or the defence of qualified privilege would apply if a defamation action were brought. I am not a legal practitioner and I wonder whether that means that a judge, acting outside his or her court, would be capable because it just says in circumstances where that qualified privilege exists. Does that parallel allow certain professions to come outside the operation of their professional life? I am a little concerned about the lying aspect of it.

On the contribution of Senator Harris, I prefaced my earlier remarks, which possibly he may not have heard, by stating that the fire in my belly had been diminished quite a bit by precisely the action to which he referred, namely, the Sunday World case. I do not want to trespass on the matter of the separation of powers, but it seems to me that that very substantially weakens the kind of case that people like me were trying to make honestly.

5 o’clock

At the end of the day, as Senator Harris will be aware, the Government side will win on this. Whatever they have decided is going to happen, but it is important for those of us on this side of the House or people who have an honest disagreement. Returning to my warm friendship with Senator Walsh, undisturbed by the moral issues or his gallantly protective nature, we all raise these issues in an attempt to clarify legislation.It is important that in these matters, particularly where the Government will inevitably win any vote, despite Cheltenham, that people act as advocatus diaboli, which one sometimes does. I am glad to have provided the opportunity for Senator Harris. I will discuss the other matter with Senator Walsh over a strong cup of coffee, with which he needs to be fortified.

  Senator Jim Walsh: Please do not go overboard.

  Senator David Norris: I will not go any further than coffee. I will explain to the Senator the feelings of the two principal participants, which are of reasonably good humour.

  Senator Eugene Regan: This section replaces the defence of “fair comment”. Fair and reasonable comment on a matter of public interest is what is being replaced. My concern relates to the issue of reasonableness. I have simply tried to refine the drafting, not delete it. I suggested a [1741]number of changes that would introduce reasonableness or objectiveness into the wording. Take, for example, where the defendant is not the author of the opinion, but believes that the author believed it to be true. The question is was there any reason for him to believe it to be true, did he ask the author or did he rely on the fact that this was a journalist in whom he would generally have confidence. There is a slight refinement in the amendment which would improve the wording and introduce a test of reasonableness, particularly into the second leg of subsection (2)(a). Will the Minister address that?

  Deputy Brian Lenihan: I did address it in sense. I was concerned that the acceptance of such an amendment would, rather than clarify the existing law, introduce a further change. I gave the example of Senator Norris’s recent comments on my legislative endeavours and said that I did not believe it should be essential for him to prove in an action by me that he was reasonable. I would view his opinions on the matter as highly unreasonable, but I think unreasonable opinions deserve to be published occasionally. I am not prepared to accept Senator Regan’s amendment.

Question “That the words proposed to be deleted stand”, put and declared carried.

Amendment declared lost.

Amendments Nos. 12 to 15, inclusive, not moved.

  An Cathaoirleach: Amendments Nos. 16 and 17 are related and will be discussed together by agreement.

  Senator Eugene Regan: I move amendment No. 16:

In page 16, line 42, after “apology” to insert the following:

“of equal prominence in the publication to contain the apology to that of the original statement”.

These amendments should, perhaps, be taken in combination with Government amendment No. 18. I have suggested that where there is an apology, it should be given equal prominence to the original alleged defamation or libel. The Minister seems to have addressed my concern in a Government amendment, but in a different part of the Bill.

  Senator Maurice Cummins: I second the amendment.

  Deputy Brian Lenihan: The Government has tabled an amendment to section 22, the section that deals with apologies, with regard to the prominence of an apology. Section 20 deals with an offer of amends procedure, that exists since the [1742]1961 Act. It would be inappropriate in the context of the offer of amends provision to insert any provision about the prominence of an apology because the offer to make amends is contingent on court approval and the agreement of the parties. Therefore, it is not an appropriate section in which to introduce the concept of the prominence of the apology. There is a Government amendment on section 22.

Senator Regan made the point that he has gone through the Bill to check where reference is made to apologies. The issue depends on the section in which the apology is contained. In the context of this section, it would not be appropriate to have a reference to the prominence of the apology.

Amendment, by leave, withdrawn.

Amendment No. 17 not moved.

  An Cathaoirleach: Amendment No. 18 is a Government amendment. Amendments Nos. 19 and 20 are alternatives to amendment No. 18 and amendment No. 21 is related. Amendments Nos. 18 to 21, inclusive, will therefore be discussed together by agreement.

Government amendment No. 18:

In page 18, to delete lines 10 to 17 and substitute the following:

“22.—(1) In a defamation action the defendant may give evidence in mitigation of damage that he or she—

(a) made or offered an apology to the plaintiff in respect of the statement to which the action relates, and

(b) published the apology in such manner as ensured that the apology was given the same or similar prominence as was given to that statement, or offered to publish an apology in such a manner,

either before the bringing of the action or, where the action was commenced before there was an opportunity to so do, as soon as practicable thereafter.”.

  Deputy Brian Lenihan: Amendment No. 18 is a Government amendment to section 22. Section 22 permits an apology to be given in evidence. The fact of an apology or the offer of an apology to the plaintiff can be given in evidence in a defamation action in mitigation of damage. This is an important and essential part of our law. The Government proposal makes clear that the evidence of the apology can be given in the form set out in the amendment:

(a) made or offered an apology to the plaintiff in respect of the statement to which the action relates, and

(b) published the apology in such manner as ensured the that apology was given the same or similar prominence as was given to that [1743]statement, or offered to publish an apology in such a manner.

The Government amendment ensures that where an apology is made and published by a defendant, the apology will be given the same or similar prominence as was given to the original defamatory statement or that the defendant offered to publish the apology in such a manner.

One of the prime purposes of the Bill is to make it easier for the media to give apologies. This is important. One of the big reasons newspaper editors were reluctant to apologise is they believed an apology would be used to accelerate or increase the amount of damages which a plaintiff could recover. This led to the undesirable situation where cases did not settle and apologies were not given and we ended up with expensive gold-mining operations in the Four Courts. If we are to avoid this, it is essential that the fact of an apology being made cannot be used against a defendant in a defamation action.

I listened carefully to what Senators said on Second Stage and in Committee with regard to their views on the conduct of the media and consulted with my Government colleagues. I took the view that a reasonable change that could be introduced in this Bill was to insist that an apology should have at least a prominence that corresponded with the wrong that was done to someone’s reputation. Therefore, the formula I have drawn up in consultation with the Parliamentary Counsel is that the apology is given the same or similar prominence. I know this does not warm the hearts of newspaper editors, but it is not an unreasonable proposal in the context of the philosophy of this legislation. The amendment proposed by Senator Regan and the Labour Party deals with the separate issues of the adequacy and timing of an apology. It is not useful to impose time limits or qualifications as to adequacy. That puts a timeframe on both a defendant and a plaintiff in the matter of the issue in acceptance of an apology. It potentially could limit the application of this Bill.

The provision in the Bill that the apology be offered as soon as is practicable is an appropriate approach. It leaves it up to the plaintiff to accept an apology prior to any court action. Where the issue becomes a concern of the court in an action, the court, in looking at the matters concerned and where there is a dispute, no doubt will take into account arguments about reasonableness but we should not write that into legislation.

  Senator Rónán Mullen: I welcome what the Minister has said in so far as it concerns the desirability of providing that an apology made would not act against the interests of a defendant. It is desirable that the law would always encourage people to do the right thing. In that regard, it is desirable that a defendant would give evidence in [1744]mitigation of damage to the effect that he or she made an apology.

I also welcome what is provided for by the Government’s amendment in terms of ensuring some adequacy of apology in respect of prominence. However, the Minister should go further and accept Senator Regan’s amendment. The question of it being a reasonable and adequate apology is surely worthy of our consideration. In so far as the Minister suggests that this might act to limit the effect of the section, surely it would only limit it in such a way that it could not be availed of by the media where the apology in question was not adequate. It is one thing to talk about the prominence of an apology. We have all seen situations where the outrage is perpetrated and the apology subsequently gets much smaller billing. However, we have also seen a phenomenon where the apology can be very mealy-mouthed. It is desirable that the legislation should provide that the reasonableness or adequacy of the apology should be a matter for consideration. I do not see why the law should not specify that the apology in question should be a reasonable and adequate one.

  Senator David Norris: I welcome the movements the Minister has made in this matter. The provisions regarding the prominence of the apology are important and significant. It is a positive move by the Minister.

  Senator Alex White: I also welcome the amendment brought forward by the Government side. It meets a considerable amount of the debate we had on Committee Stage. I strongly support the general direction of this Bill, as I indicated before. I also support section 22 and what it seeks to achieve, in particular the change in our law such that the carrying of an apology will not be relevant to the determination of liability in a defamation action. The change proposed in this legislation is correct in this regard. I also agree with the Minister when he says that part of the intention is to make it easier for media defendants, about whom we are talking essentially, to give apologies by which he means that the Bill should incentivise media defendants to give apologies.

I ask the Minister to address a point I made on Committee Stage about the importance of timely apologies. From my experience in the media in the dark and distant past and from what one observes, the dynamic of a situation where an alleged defamation is carried in a newspaper or, perhaps even more so, on radio and television, changes very quickly. If a person believes he or she has been defamed and wishes to take action in respect of it, we all know that battle lines are quickly drawn in terms of litigation if some satisfaction is not given to that person quickly. If he or she is intelligent about it, he or she will look for a quick apology because the sting of the damage to his or her reputation, as he or she sees [1745]it, in the public domain can be most easily or satisfactorily corrected if it is done quickly. For something to take weeks, months or in some cases, as we know with litigation, years to be resolved will change the entire dynamic. The battle lines will have been drawn and, very often, it becomes concerned with something quite different from what it was about in the first place.

Why can the Minister not see the sense in encouraging not just apologies but timely apologies? The amendment proposed by us does not, as was suggested by the Minister, impose a mandatory requirement for a timely apology. It simply says that the court “may regard an apology as effecting a substantial mitigation of damage if, but only if, it is made within 14 days of complaint”. It does not exclude apologies not made within that period. It simply says that an apology made in a timely and expeditious way to deal with a problem can be taken into account by the court. It is not a proposal for a mandatory requirement or anything like it. In the context of the Minister’s argument about making it easier for media defendants to give apologies, can he not see the sense in at least encouraging timely apologies in the circumstances?

  Senator Eugene Regan: I welcome the fact that the Minister addressed the prominence of the apology, which was an issue raised by me and other Senators on Committee Stage. Time is of the essence in terms of the meaningfulness of an apology. The formulation I proposed in amendment No. 20 has a lighter touch than that suggested by Senator White. It refers to a period within 30 days from the date of the written complaint or as soon as is practicable thereafter. It emphasises the issue of time but does not lay down a firm limit. It is that type of timing which the court can reasonably have regard to. As Senator Alex White said, to come in with an offer of an apology on the day of the court hearing does not merit being considered in the same light as an apology that is promptly given within 30 days or so of a written complaint. The wording of this section would be improved if there was some rephrasing to give greater emphasis to the timing of the apology. I ask the Minister to reflect on that.

  Senator Jim Walsh: During the various Stages of the Bill, all Members were ad idem in respect of the prominence that should be given to an apology and possibly the time lines. I acknowledge and welcome the amendment the Minister has tabled because he has taken on board the points that have been made. While he is not as prescriptive perhaps as we might have suggested with regard to the time line, in the latter part of amendment No. 18, he places an imposition that it should be done as soon as is practicable thereafter. I recognise that he has responded positively to that.

[1746]  Deputy Brian Lenihan: In respect of time lines, as Senator Walsh pointed out, the formula used in the Bill is “as soon as practicable”. I am being asked to go beyond that and have concepts of strict time limits within which the apology will only operate for the purpose of the section — within 30 days, which is Senator Regan’s proposal, or Senator Alex White’s proposal which is that we can have an apology as a substantial mitigation of damage within 14 days. In the event of a case taking place, the formula “as soon as practicable” leaves it to the courts to determine whether reasonableness and promptitude were observed. I am not convinced that we, as legislators, should be more prescriptive than that.

Listening to Senators Alex White and Regan, I thought of future libel textbooks replete with chapters devoted to the subject of the distinction between a substantial mitigation of damage and ordinary mitigation of damage or, in Senator Regan’s case, of the reasonable and adequate apology and the amount of jurisprudence and juristic thought which would be expended on it. It is not desirable for us as legislators to state the law in such a prescriptive form. It suffices in this context to state the general principle that matters should be dealt with as soon as practicable where an apology is merited and leave it to the courts to determine the application of that to the particular facts.

Amendment agreed to.

Amendments Nos. 19 to 21, inclusive, not moved.

  An Cathaoirleach: Amendments Nos. 22 and 23 are cognate and will be discussed together by agreement.

  Senator David Norris: I move amendment No. 22:

In page 18, line 24, after “not” to insert “automatically”.

We had this debate on Committee Stage. Section 22(3) states:

(3) In a defamation action, an apology made by or on behalf of a defendant in respect of a statement to which the action relates—

(a) does not constitute an express or implied admission of liability by that defendant.

I wish to insert the word “automatically”. Circumstances could arise in which an apology was offered and should not automatically be. This does not entirely remove the protection to the newspapers and it advances the position of the newspapers as they see it. I do not understand why simply giving an apology should automatically wipe the slate clean. There is room for some prudent judgment by a court that would not give any exposure to the newspapers. The inclusion of [1747]the word “automatically” would clarify the matter and improve the legislation.

  Deputy Brian Lenihan: The Chief Parliamentary Counsel’s advice is that the proposed wording would not be normal in drafting legislation and does not provide for any additional clarification of the provision. However, the Chief Parliamentary Counsel also warned that it might have the effect of changing the meaning. I fear that is precisely what the Senator is trying to do in this case. Of course the whole meaning of the section is very clear. It is at the kernel of the Bill that the apology cannot be used as evidence of liability. That section is a pivot for the Bill. As Senator Norris is very ingeniously trying to remove that pivot, I cannot accept his amendment.

  Senator David Norris: The Minister is correct. The lack of normality would not distress me in the slightest. However, my lack of normality has led to a resounding silence throughout the House. As I appear to have no seconders, I should not waste the time of the House on it.

Amendment, by leave, withdrawn.

Amendments Nos. 23 and 24 not moved.

  An Cathaoirleach: Amendments Nos. 26 to 29, inclusive are alternates to amendment No. 25. Amendments Nos. 30 to 32, inclusive are alternates to amendment No. 29. Amendments Nos. 25 to 32, inclusive, may be discussed together by agreement.

  Senator Eugene Regan: I move amendment No. 25:

In page 18, to delete lines 35 to 45, to delete page 19 and in page 20, to delete lines 1 to 10.

I raised this matter on Committee Stage during the discussion of the defence of fair and reasonable publication on a matter of public interest. The justification for introducing this defence in the Bill is that it is settled law in this jurisdiction. We have had some discussions on the matter on Committee Stage and the Minister referred to the various case law. He also said:

I agree philosophically with Senators Norris and Regan on this. Many commentators argue that the issue in defamation should be truth or falsehood. Absolute and qualified privilege trench on it...

I am surprised that the Bill now on Report Stage does not reflect the views expressed on Committee Stage by the Senators and the Minister. The fact is that the law is not settled in this area and we are essentially deeming that law established by the British House of Lords should be given a statutory basis here. That is law which in the main case of Jameel was a two-to-one judgment and [1748]has only persuasive influence in the courts here. I am not suggesting that there is not an opportunity for the jurisprudence in this matter to be developed in the Irish courts. It is best left to the courts at this juncture that this defence be developed if it is to be developed. There is currently an appeal to the Supreme Court that needs to be adjudicated upon, which would clarify the law in this area. It raises issues of constitutional law. There is the constitutional guarantee to the right to one’s good name and the right to privacy. On the other hand there is the public interest issue, which is served in terms of the constitutional right to freedom of expression. Section 18 contains the honest opinion provision, which is appropriate. However, in this instance, given the constitutional implications and the need for balancing these rights and given that the issue is before the Supreme Court at the moment, the matter would be best left to the courts.

Originally two Bills were to have been introduced, the privacy Bill and this Bill on defamation. When the privacy Bill was withdrawn or parked as the case may be, this provision of fair and reasonable publication on a matter of public interest was introduced. In the absence of the privacy Bill and the law being settled by the Supreme Court, it would be appropriate to stay this matter and not to include it in the Bill.

I could refer to case law involving material mistakes of fact and publications that are factually incorrect and defamatory but which are given effectively qualified privilege here. It is an extension of qualified privilege to political information as it were. I am not sure the manner in which the provision is articulated is appropriate in the light of the unsettled state of the law in this jurisdiction. I ask that this amendment be deleted and that the matter be left to the courts where the law can be properly developed and the constitutional provisions can be interpreted.

  Senator Rónán Mullen: I second amendment No. 25. I take a different view from Senator Regan in terms of what I am proposing in amendment No. 26 as a means of redressing what I would regard as the mischief in the proposed section 24. I base my comments largely on the debate that took place on Committee Stage. It is clear not only that there is a large element of disquiet among public representatives to whom I have spoken on the proposed section 24, but also that the disquiet is shared by the Minister and the Fine Gael party. I will recall Senator Regan’s comments on Committee Stage in a moment but, first, I will briefly revert to what the Minister said. He noted that the proposed section 24 would extend the occasion of qualified privilege to the world at large. He said that defamations can, on occasions of absolute or qualified privilege, occur without malice.

The Minister talks about the judicial precedence not being encouraging in this area, by which it is clear what he means. I note the Mini[1749]ster’s impressive legal credentials but he noted the fact that case law in this area was such as to lead gradually to this kind of defence of fair and reasonable publication being available to media that would defame a person. The Minister regarded such judicial precedence as not being encouraging. As Senator Regan noted, the Minister went on to agree philosophically both with my colleague Senator Norris and with Senator Regan. The Minister said that, wearing his ministerial hat, he was in a difficult position. He said that were he not to legislate for this area he would leave the matter for the courts where the signals are not encouraging. He went on to say therefore that the only option is to legislate for this defence of fair and reasonable publication but to restrict it in every possible way. The Minister said that as a person interested in legal matters — he understates the position there, I think — that he never agreed with the Sullivan judgment. He said the fact that our courts are introducing this defence gradually was disappointing to him.

I fully agree with the Minister. This case law is not taking us in the proper direction. A defence of fair and reasonable publication should not be available because I believe that a person’s good name is important. I agree with what Senator Harris said, by implication, about the importance of investigative journalism. I note, however, that the exposés he referred to — although I am going from memory — happened under the current defamation regime. I have not heard many examples of wrongdoing that were not outed because of the precise content of our defamation laws to date. Even if there were such examples, I do not see how that could justify defaming a person.

I am also concerned by the public interest dimension incorporated in the proposed section 24, which seems to suggest that where we are talking about a person’s discharge of their public duties, it might somehow be more legitimate to defame them, or that there might be a greater entitlement to the defence of fair and reasonable publication.

My big difficulty, however, is that the Minister appears to believe that the courts are somehow on this journey, jurisprudentially speaking, and that they cannot be stopped, but that we can somehow legislate to restrict it. I apologise if I have misunderstood the meaning of what the Minister is saying, but this is why I disagree with Senator Regan’s amendment. The mere deletion of what is proposed would certainly allow the courts to continue in the current direction. That would have the effect of frustrating the Minister’s intent, which is to limit as far as possible the availability of the defence of fair and reasonable publication. There is another way to limit it, however, which is — as I have proposed — to exclude specifically the possibility that the courts might allow such a defence. It is in the hands of the Oireachtas to determine, subject to the Consti[1750]tution, what the courts decide in these matters. That is why I did not understand what was said on Committee Stage. I say that with all respect for the Minister’s legal credentials, which are considerable. I just do not understand why there is an implication in everything that was said on Committee Stage that there was nothing we could do to stop the courts from deciding as they have been.

I am therefore proposing an amendment that would clearly establish that there shall be no defence based on fair and reasonable publication, or based on the idea that the statement in respect of which the action was brought was published in good faith, or in the context of a discussion which is the subject of a matter of public interest, and so on. I do not know what to make of the various whisperings one hears that a deal was done under the last Government with captains of the media industry. I do not think there is any point in discussing that. Why is it, however, that politicians on both sides of the House regard this proposed section as a retrograde step, yet we seem to be careering towards its adoption in this House? I do not understand the logic of that. We are purporting to do something very serious in departing from the principle that if one is defamed — even if, God help us, one is a public person — one shall have a remedy in the courts. Politicians in particular will rue this section if it goes through.

I work in journalism part-time and have much respect for the very fine journalists who research, report, analyse and comment upon complex and important issues. I have concerns, however, about journalists who, in my view, do not have the right to defame somebody and not be liable to legal sanction. Nobody has that right.

I wish to mention briefly the concerns of a barrister, Mr. Jim O’Callaghan, who is more experienced than I am in this context. He is a colleague of the Minister in the Fianna Fáil party but also an eminent barrister. In addressing the Bar Council conference in December 2007, Mr. O’Callaghan expressed significant concerns about the proposed section 24. He said that no analysis of the right to free expression, of which he was aware, had sought to promote it into a form of protection for the dissemination of factually inaccurate material. Mr. O’Callaghan also said that the right to freedom of expression should not afford any protection to a false statement. He said the State must ensure that there is a statutory mechanism available so that a real remedy is available to the victim of such a false statement. He said that the balance between freedom of expression and a person’s right to their good name could be achieved through the simple requirement that the media can publish anything they wish, subject to the laws on privacy — whenever we have more of them — and fair trials, or any statutory prohibition such as those that apply in family law proceedings, provided what they say is true. I could elaborate further, but I will not.

[1751]What is proposed in section 24 will promote and exacerbate a culture of irresponsible journalism. There is a time to talk about freedom of expression and, if we were in Burma, I would, perhaps, express a different view. The fourth estate in this country is very powerful. I do not believe it needs the extra leeway proposed in section 24 in terms of defaming people’s characters and getting away with it. It will undermine a culture of good journalism. As public representatives, we will rue the day.

It would be nonsensical for this proposed section to stand given the reservations expressed by the Minister, Senator Regan and others. The Minister said on Committee Stage that he would be interested to see whether Senator Regan could bring his party, including members of the Dáil, along on this and whether there might be all-party agreement which would put us all in a stronger position. While the Minister is a man for whom I have great respect, it sounds to me like he is looking for an excuse to do the right thing. I call on Members on all sides to take courage in their hands and to not be afraid of negative headlines or bullyragging from some sections of the media who believe they deserve the powers of this section, and to legislate, as suggested in my amendment, to specifically exclude its effect.

  Senator Jim Walsh: I will be brief as I regret I must attend two meetings this evening. In speaking to amendment No. 30, I acknowledge the Minister’s amendment No. 29 goes some way towards addressing the points raised here on Committee Stage and during a previous debate on this Bill prior to the dissolution of the Dáil.

Subsection (h) of the Minister’s amendment states: “if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person; and”. I am asking that such reasonable attempt made by the publisher be made in advance. When we last discussed this, the Minister stated that would be understood. However, he also stated in reply to another of my amendments that we cannot leave matters to be determined by the courts or leave issues open. While the proposed change is minor, it obviates a situation arising whereby with five minutes to the by-line an attempt is made to contact a person and that contact having failed an article appears in the daily newspaper. While an attempt may be made to contact the person the following day, the damage will have already been done. The argument could be made, under the section as drafted, that everything possible was done to make contact with the person. An article can be prepared over a number of days and there is no reason a person, the subject matter of an article, cannot be contacted well in advance of publication of that article.

Unfortunately, I must now leave the Chamber. I acknowledge and thank the Minister for amend[1752]ment No. 33. I know we are not dealing with amendment No. 33 now but it addresses the issue raised in amendment No. 34 in my name.

  Senator Dan Boyle: Amendment No. 34 is not being discussed with the amendments before us.

  Senator Jim Walsh: No. I have strong views in regard to the proposal contained in amendment No. 39. In my opinion, an acknowledgement without correction or apology defeats the purpose.

  Acting Chairman: Senator Walsh must deal with the amendments before us.

  Senator Jim Walsh: I am aware of that. However, I wished to put those remarks on the record as I may not be back before the amendment is reached.

  Acting Chairman: I remind Senator Walsh that he is only speaking to the amendments now and that they must be formally moved later.

  Senator Jim Walsh: Yes. I hope my colleague will move amendment No. 39 on my behalf.

  Senator Alex White: Am I correct that amendments Nos. 31 and 32 are being dealt with within this group?

  Senator David Norris: Yes, they are.

  Deputy Brian Lenihan: Amendment No. 29 is a Government amendment.

  Senator Alex White: I realise that. However, I was unsure what amendments we were discussing now. Are amendments Nos. 31 and 32 included in this group?

  Acting Chairman: We are discussing amendments Nos. 25 to 32 inclusive.

  Senator Alex White: I want to record my support for section 24. Regrettably, I find myself in disagreement with some of my colleagues on this side of the House. However, that happens.

I await the Minister’s response on the rationale for this section as outlined by him in previous debates. I believe there is clear rationale and logic for making a distinction in respect of what is often referred to as “the public figure defence”. I understand Senator Regan when he says we should wait and see how the jurisprudence develops. There are cases that might influence us in this regard. However, I do not support my colleague, Senator Mullen, who said we should arrest this section or stop this from happening.

  Senator Eoghan Harris: Hear, hear.

  Senator Alex White: Whatever the issues before the Supreme Court, this section has merit. [1753] I do not support those who seek that it be arrested. There exists an unanswerable logic and rationale for saying that we ought to regard, in the spirit of promoting public debate on matters of public concern, a man or woman in the public arena as being in a somewhat different position to the so-called little man referred to earlier on. There is no question but that this is the case. We must support this if for no other reason than that the Acting Chairman or I must have an opportunity to respond to things said about us.

It is true that in public debate people are often offended. I have suffered this myself. However, I will not discuss the matter now as we should not discuss in this House issues related to us personally. People in public life ought to understand that they are part of a wider public discourse. In my view, it is overly defensive for people to take the view that newspapers should not be rigorous and robust in their dealings with us. That is the type of democracy in which we live and it should be promoted rather than stemmed in this Oireachtas. I strongly support this provision.

It may be suggested this gives carte blanche or a free-for-all to the media to say what it likes about public figures. However, that is not the case. The section contains safeguards in this regard. One could even make the argument that some of the safeguards are overly restrictive. For example, an over-arching safeguard is that the court must take into account the extent to which the statement concerned refers to the performance by the person of his or her public functions. It does not relate to any statement made willy nilly about a public figure. Rather it refers to statements about him or her in the context of the performance by him or her of their public duties. The notion that this is a free-for-all is wrong. It is wrong of Senators or anybody else to give the impression that is what is being proposed.

Subsection (2)(f) refers to the Press Council and the requirement for the court to consider the extent to which its code or a standard equivalent to it were adhered to by the media concerned. That is vital. Relevant to this debate is the support which we provide to the Press Council and press ombudsman.

I also share Senator Harris’s scepticism about the notion of a privacy Bill; I have real doubts about it. I know the Minister’s position on it. He has said fairly he will give the Press Council an opportunity to consider where it will go and what it will achieve, which I appreciate. I, no more than the Minister, do not want to pre-empt what might happen in that regard. I have an innate scepticism about these proposals that appear increasingly to be made that people consider it necessary to restrict the media in the way that has been suggested. I am not saying we should have a free-for-all position, as many restrictions are already in place, as is right and proper.

This is a substantial Bill. It is not a charter for the media to do or say what they want. It has nuanced some of the existing law and introduced [1754]some new progressive changes. I regard the introduction of a provision for fair and reasonable publication on a matter of public interest as a progressive change, which I support.

Following what Senator Mullen said and my good friend, Senator Norris, teased me a little on the debate on Committee Stage——

  Senator Rónán Mullen: I hope I also am a good friend of the Senator.

  Senator Alex White: They both are my friends. Senator Norris said he was surprised — I know he was only teasing me but this issue is important as there is a serious aspect to it — that the Labour Party appeared to be aligning itself with the big media bosses and the press barons. On occasion, one finds oneself in the same camp as people with whom one does not particularly want to dine or be associated, politically or otherwise, but that should not take from the extent to which it is important for one to come forward and express a view. I do not know if deals, discussions or anything else engaged in with newspapers, whether with media barons or anybody else, formed any part of the rationale for this Bill. I very much hope that was not the case. I am much more interested in promoting debate, however, through newspapers, radio and television, and anything that I say on this debate has that in mind. I have no interest in being associated with media barons, bean barons or anything else. I regard this as a fundamental issue of democracy and that is the basis on which I support this provision.

It appears that in amendment No. 29 the Minister has substantially dealt with the issues raised in my party’s amendments Nos. 31 and 32.

  Deputy Brian Lenihan: That is the intention.

  Senator Alex White: While I might have a few minutes to reflect on the Minister’s response, I understand that my party’s amendments will fall if the Minister’s amendment is accepted.

  Acting Chairman: The moving or withdrawing of amendments will happen in sequence. Therefore, the Deputy will have an opportunity to deal with them after the debate.

  Senator Alex White: I will have a moment to consider them and reflect on the Minister’s response.

  Senator David Norris: Senator Mullen made some effective points, especially when he referred to the previous debate. I do not want to rehearse the whole debate because that would be tedious and it is already on the record. When the Bill goes to the other House, Members of it will have an opportunity to consider the whole debate, including Second and Committee Stages. We are now on Report Stage and it is not the time to be overwhelmingly tedious and while I am not suggesting [1755]that anyone has been, I might well be in danger of so being.

It is interesting that the Minister said he was philosophically in agreement with me and Senator Regan, yet he is acting in the opposite direction. That suggests, to use the American phrase, that the Minister is conflicted. I simply point that out. He mentioned the Sullivan case.

  Deputy Brian Lenihan: This does not go as far as the Sullivan case.

  Senator David Norris: I know, but it is the directional trend which is worrying. Senator Alex White said that people in public life should be subject to robust and rigorous examination. I completely agree with him. Who on earth imagines that I am against robust and rigorous investigation and comment? I am, however, against untruth, lies and the printing of lies. We should be careful about where this leads. However, the Government has the numbers and it will do what it wants.

In my amendment I examined one of the sections to which Senator Alex White referred which deals with the establishment of the Press Council and the adherence to the code of standards of the Press Council or to standards equivalent to those specified in that code of standards. What is this equivalence? That is very woolly. It is bad draftsmanship and that is why it should be deleted. If there is a standard set by the Press Council, what are we doing by including such equivalence? What is this parallel universe that also exists? This is bad law and bad draftsmanship. It opens the gate wide enough to let a herd of stagecoaches through — that is a bit of mixed metaphor. I am concerned about this.

I repeat the fact that I am not against robust and rigorous examination. Senator Pearse Doherty and others referred to the Proclamation of Easter 1916 and the cherishing of all the children of the nation equally. Likewise, the Constitution of Ireland makes no distinction in the Articles, which I quoted extensively during the previous debate, where the State guarantees to vindicate vigorously the good name of the citizen. It does not provide that it will do that until the citizen goes into public life.

  Senator Rónán Mullen: Hear, hear.

  Senator David Norris: The wording of this section is insane and unconstitutional, but I doubt if it will soon emerge that someone will take a case. I am astonished that people, especially those to the left, would support the apparent creation of two-tier citizenship.

  Senator Rónán Mullen: The old libertarian blood runs through Senator Alex White’s veins.

[1756]  Senator David Norris: I do not want to attack Senator Alex White. He is a decent person and his party has not yet made the jump and done what Tony Blair did. He was happy to dine with Rupert Murdoch in Australia and that is how the Labour Party got into power in England. The newspapers owned by Mr. Murdoch had done in Neil Kinnock, so to speak, who was a fine and decent man, and put in the queasy little equivocator, Mr. Blair, instead. The very fact that Mr. Blair was a nominee of Rupert Murdoch did not appeal to me.

I will leave it at that and I hope that someone in the other House will take up this point. We are creating two-tier citizenship. A person has one set of rights as an ordinary citizen and another set of rights when a person is in public life. I support robust and rigorous examination but am against untruth. That is my view and I do not apologise for it.

  Senator Eoghan Harris: I still find it difficult to believe that a group of legislators who are responsible for changing the libel laws would speak as Senators Norris and Mullen have and appeal to the Minister to circle the wagons around elected politicians. If the average member of the public could see what goes on in The Irish Times or the Irish Examiner every day and the way the libel laws are used to protect the powerful in this society, reform of libel laws and defamation long ago would have been an election issue.

It is outrageous to suggest that the legislators here should ring themselves around with a fat protective screen against the scrutiny by the public. All previous generations of Irish politicians would have rejected it as a nonsense. We can appreciate that Daniel O’Connell, Parnell and all those Irish politicians in the first Dáil lived in a robust world. When did we become such a precious little group of people that we cannot take public scrutiny?

(Interruptions).

  Senator Eoghan Harris: We have a Press Council and a press ombudsman and between those two bodies any politician here who is worried about himself or herself is well protected from simple lies.

6 o’clock

What we are talking about is the constant racket of money making, particularly on the part of the most powerful people in society who are the first up to charge the newspapers with defamation or libel. I have never heard such nonsense and this has been going on for years. The Oireachtas has refused for many years to reform the defamation laws and this refusal is not in the interests of Irish democracy.

  Deputy Brian Lenihan: Several issues arise in regard to this section. My comments on Commit[1757]tee Stage were precisely that and were made in the context of a proposal that we should not legislate in this area. Senator Regan has restated that proposal in advocating that we simply delete the section and do not address this issue. I disagree. Senator Regan referred to pending legislation before the Supreme Court, but this Bill is prospective rather then retrospective in effect. We as legislators have a duty to legislate the law in its original form. This Bill is presented as a codifying and reforming measure and it lists in an exhaustive manner all the defences available in a defamation action. It is not a desirable state of affairs to say that we should not legislate for this area but instead leave it entirely to the courts. Many of my comments on Committee Stage must be referred to in this particular context.

The United States courts, in the decision in The New York Times Company v. Sullivan gave a wide latitude to commentators and journalists to defame politicians. That is not what is proposed in this section. In regard to Senator Mullen’s comments, I am prepared to accept that there can be such a creature as a journalist who decides that there is a public matter upon which he or she fairly and reasonably wants to comment and that he or she can publish something in good faith which, in all the circumstances of that case, it is fair and reasonable so to do. As Senator Alex White observed, we have subjected this matter to the requirements of our equivalent body, the Press Council. The courts drew up these judgments in the context of particular cases where they saw a particular difficulty. There have been several statements by judicial authorities of some eminence that they are prepared to recognise such a defence. We have a duty, therefore, to state the law.

There was some reference to the possibility that I may be conflicted or that promises may have been made to media interests. That is certainly not the case.

  Senator David Norris: I did not say that.

  Senator Rónán Mullen: Nor did I.

  Deputy Brian Lenihan: Senator Mullen referred to that. I was open in my attitude to this Bill which was introduced to this House in the lifetime of the previous Seanad. On my appointment as Minister, I decided to review it. This included a process of consultation with interests in the legal profession many of whom take the views put forward by Senators Norris, Mullen and Walsh. I also met representatives of the media organisations, both on the journalistic and the editorial side. The views of the journalists did not always correspond with those of their editors. I tried to strike a fair balance.

Although my initial instinct was to drop this defence, the more I examined it, the greater became my conviction that the Oireachtas should take its responsibility seriously in this area by [1758]stating the circumstances in which the defence could be availed of. The defence has been recognised not only by our own courts but by courts in the United Kingdom and by other common law jurisdictions outside the United States. Moreover, there is a view that elements of it have been recognised in the European Convention on Human Rights. It is better to recognise the reality of this issue and legislate for it.

I am prepared to accept the fundamental point that in a democratic society, in regard to public discussion of matters of great political interest, there can be an honest journalist who makes a mistake. Senator Harris has launched vigorous defences of some of the criticisms of the Taoiseach in recent times. We must be robust in these matters and I agree with him in that regard. It is not an option, as Senator Regan suggested, to send this off to the Supreme Court. We have a duty to legislate and lay down the parameters within which this defence can be availed of. This Bill seeks to do so in a reasonable way.

The Government amendment No. 29 addresses the concerns raised by Senator Alex White. This amendment is along the same lines as that proposed by the Labour Party on Committee Stage. It clarifies the position to strengthen the subsection in terms of imposing an obligation on a journalist. It is a further strengthening of the subsection in that there must be some “reasonable attempt” by the journalist to allow the plaintiff to put forward his or her version of events. This is reasonable. One cannot, as Senator Walsh advocates, include the words “in advance”. Whether a reasonable attempt was made is something that will be judged in the circumstances of a particular case.

  Senator Eugene Regan: I respectfully disagree with the Minister. The matter should be left to the courts because there is at issue here the interpretation of the Constitution and the balancing of the rights of freedom of expression and privacy. This is the fundamental reason it is not appropriate at this juncture to insert the defence. This does not negate the evolution of the common law and jurisprudence. The defence as formulated here is rather crude in the circumstances. I propose to press the amendment.

Question put: “That the words proposed to be deleted stand.”

The Seanad divided by electronic means.

  Senator Frances Fitzgerald: I wish to seek a manual vote.

  An Cathaoirleach: Under Standing Order 61, I have to inform the House that it is necessary to take the division again otherwise than by electronic means and Members should proceed to the lobbies where the division will be taken manually.

[1759]  Senator Donie Cassidy: On what grounds are we having a manual vote?

  An Cathaoirleach: In my opinion they are entitled to a manual vote.

  Senator Donie Cassidy: Does one have to give a reason?

  Senator Dan Boyle: On a point of order——

[1760]  An Cathaoirleach: The bells are ringing so I cannot take a point of order.

  Senator Dan Boyle: On a point of clarification——

(Interruptions).

Question again put.

The Seanad divided: Tá, 26; Níl, 12.

    Boyle, Dan.

    Brady, Martin.

    Callanan, Peter.

    Callely, Ivor.

    Cannon, Ciaran.

    Carty, John.

    Cassidy, Donie.

    Corrigan, Maria.

    Daly, Mark.

    Feeney, Geraldine.

    Hanafin, John.

    Harris, Eoghan.

    Keaveney, Cecilia.

    Kelly, Alan.

    MacSharry, Marc.

    McDonald, Lisa.

    Ó Domhnaill, Brian.

    Ó Murchú, Labhrás.

    O’Brien, Francis.

    O’Sullivan, Ned.

    Ormonde, Ann.

    Phelan, Kieran.

    Walsh, Jim.

    White, Alex.

    White, Mary M.

    Wilson, Diarmuid.

Níl

    Burke, Paddy.

    Buttimer, Jerry.

    Coffey, Paudie.

    Coghlan, Paul.

    Cummins, Maurice.

    Donohoe, Paschal.

    Fitzgerald, Frances.

    Healy Eames, Fidelma.

    Mullen, Rónán.

    Norris, David.

    O’Reilly, Joe.

    Regan, Eugene.

Tellers: Tá, Senators Dan Boyle and Diarmuid Wilson; Níl, Senators Maurice Cummins and Eugene Regan.

Question declared carried.

Amendment declared lost.

  Senator Dan Boyle: On a point of order, am I right in thinking that the Official Report will record the manual vote and not the electronic vote which showed that the Fine Gael Senators voted with the Government on their own amendment?

  An Cathaoirleach: The manual vote will be the record.

  Senator Jerry Buttimer: Senator Boyle needs to be careful about what he is saying because it will come back to haunt him. He should not be so smart.

  Senator Dan Boyle: I want that clarified.

  An Cathaoirleach: The manual vote will show in the Official Report.

  Senator David Norris: I have a substantial point of order to make. Arising from what Senator Boyle said, earlier in the day the Government lost a vote on one of the most important aspects of the Bill. It was a voice vote that I called.

  Senator Jerry Buttimer: That is right.

  Senator David Norris: I knew perfectly well that the Government would call an ambulatory vote if we did not and that it would be a waste of time. If the Senator wants the Official Report to show Fine Gael’s embarrassment, let the Government’s embarrassment also be shown because that side failed on the voice vote.

  Senator Jerry Buttimer: Senator Boyle was absent without leave. We do not know where he was.

Amendments Nos. 26 to 28, inclusive, not moved.

Government amendment No. 29:

In page 19, to delete lines 22 to 26 and substitute the following:

“(g) the extent to which the plaintiff’s version of events was represented in the publi[1761]cation concerned and given the same or similar prominence as was given to the statement concerned;

(h) if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person; and”.

Amendment agreed to.

Amendments Nos. 30 to 32, inclusive, not moved.

  An Cathaoirleach: Amendment No. 34 is an alternative to amendment No. 33. Amendments Nos. 33 and 34 will be discussed together by agreement.

Government amendment No. 33:

In page 19, to delete lines 34 to 39 and substitute the following:

“(b) entitle the court to draw any inference therefrom.”.

  Deputy Brian Lenihan: I have reflected further on the proposal Senator Walsh made on Committee Stage and again today and am happy to say that essentially I am accepting his amendment through my amendment No. 33. Section 24(3)(b) as drafted provides that a court shall not draw an inference from a plaintiff’s failure or refusal to respond to attempts by the defendant to elicit the plaintiff’s version of events. There was concern, however, that the remainder of the text in that subsection was superfluous and could detract from the no inference provision. I propose to delete that provision.

  Senator Lisa McDonald: On behalf of Senator Walsh I thank the Minister for taking his views into consideration and incorporating them into the amendment.

Amendment agreed to.

Amendment No. 34 not moved.

  Senator Alex White: I move amendment No. 35:

In page 20, between lines 2 and 3, to insert the following:

“(d) as far as practicable, he or she made a reasonable attempt to obtain in advance and publish a response from the person to whom the publication related, and”.

I am still gathering myself after all the confusion and excitement of the vote. I will wait to hear what the Minister has to say about the amendment.

[1762]  Senator David Norris: I second the amendment. If I am right, and Senator Alex White will correct me when he has collected himself, this amendment gives a person a fair opportunity to respond to a potentially damaging article that may appear in a newspaper. It must be a reasonable attempt to publish a response. I have had the experience when highly libellous material was published about me and I got a very muddled call late at night, and so on. Senator White is attempting to be fair to both parties by protecting newspapers in making this some type of defence but also indicating that they should attempt to obtain in advance and publish a response from the person who is maligned. That is as I understand it.

  Senator Rónán Mullen: I wish to speak in support of the amendment. This was referred to in a proposed amendment by Senator Walsh as well, namely, the use of the term “in advance”. There appeared to be a lack of clarity on Committee Stage, if I have not misunderstood the situation, as to whether the words “in advance” should be inserted. I believe the Minister said at one point on Committee Stage that by definition, the attempt to contact the person would have to be made in advance. I will not put a strain on the time of the House except to say it is important that the concept of the media making an effort in advance to obtain the view of the other side, so to speak, should be provided for explicitly in the legislation.

  Deputy Brian Lenihan: We are still on section 24, of course. The Seanad has already amended the Bill and accepted a Government amendment, after the hullabaloo, which has provided “the extent to which the plaintiff’s version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned” and “if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person”. That has now been written into the Bill by way of amendment and addresses the substantive concern raised in this amendment. For some reason, this amendment was not grouped with a similar one tabled by Senator Alex White which he withdrew a few moments ago.

  Senator Alex White: That is correct and I do not propose to press the amendment.

Amendment, by leave, withdrawn.

Amendment No. 36 not moved.

Government amendment No. 37:

In page 21, to delete line 14 and substitute the following:

[1763]“(c) the respondent failed or refused to accede to that request or, where he or she acceded to that request, failed or refused to give the apology, correction or retraction the same or similar prominence as was given by the respondent to the statement concerned.”.

  Deputy Brian Lenihan: Section 26 provides for the making of a declaratory order by the court that the statement of a respondent is false and defamatory. Subsection (2) provides that the court shall make the order if it is satisfied on the basis of conditions set out and is consequential on acceptance of amendment No. 18. The effect of the amendment is that an apology in the context of a request by an applicant for a declaratory order is required to have been given the same or similar prominence by the respondent as the original defamatory statement. This again follows from the Government’s acceptance of the principle that apologies should have the same or similar prominence.

Amendment agreed to.

Amendment No. 38 not moved.

  Senator Lisa McDonald: I move amendment No. 39:

In page 22, line 4, to delete “not”.

  Senator Rónán Mullen: I second the amendment.

  Deputy Brian Lenihan: As I explained on Committee Stage, to accept this amendment would be to overturn the very essence of the reforming modernisation of our law on defamation — to maintain a connection between a lodgement and a failure to accept liability. Subsection (4), which Senator Walsh proposes to amend, is a critical component of the section in that it ensures both parties to an action are placed on an equal footing at the commencement of the hearing. Senator Walsh’s amendment would have the effect of reverting to the previous position which would require the defendant to admit liability in offering a lodgement prior to a court hearing.

  Senator Lisa McDonald: We will not press the amendment.

  An Leas-Chathaoirleach: Is that agreed?

  Senator David Norris: No.

  Senator Rónán Mullen: No.

Question, “That the amendment, by leave, be withdrawn”, put and declared carried.

Government amendment No. 40:

[1764]In page 22, to delete lines 25 to 29 and substitute the following:

“(3) Where a plaintiff intends to make an application under this section, he or she shall so inform—

(a) the defendant by notice in writing, not later than 7 days before the trial of the action, and

(b) the court at the trial of the action.”.

  Deputy Brian Lenihan: This is a technical amendment designed to improve the drafting of the provision in section 28(3) regarding the timescale involved in application for a correction order.

Amendment agreed to.

  Senator David Norris: I move amendment No. 41:

In page 22, line 37, to delete “shall give directions” and substitute “may advise”.

This is the question of the judge “shall give directions” to the jury in the matter of damages. That is pretty authoritarian and again we have gone through all this on Committee State. However, I want to table it again. The judge “may advise” would be much preferable as far as I am concerned because it is not so authoritarian. They should not give directions but rather advise because it seems to me that we are second-guessing the jury. Let the judge advise. Any sensible jury would take very much into consideration the advice of the judge, but to give directions undercuts the role of the jury and that is regrettable.

  Senator Rónán Mullen: I second the amendment.

  Deputy Brian Lenihan: Section 29 provides that where a defamation action is brought in the High Court, the judge shall give directions to the jury in the matter of damages. That updates the existing provisions on an award of damages. The parties to a defamation action may now make submissions to the court in the matter of damages. Subsection (4) sets out a number of factors to which the court — and it is made clear in subsection (8) that this means the jury if the High Court is sitting with a jury — shall have regard in making an award of general damages. Of course it is a matter for the jury and that is set out in section 29(8). However, the judge is entitled to give directions as to the legal obligations of the jury. That is all the subsection provides. The jury, as so advised and directed, arrives at its own decision. The expression “directing a jury” is a common phrase used in legal practice concerning the advice which a judge gives a jury.

  Senator David Norris: It may be common, but I am tempted to say it is very vulgar, too. This is [1765]a clear case where the specialised language used by lawyers confuses the public and I am concerned this might happen with regard to the jury. If members of a jury are told the judge is giving them directions, they probably will believe they are being told what to do, whereas if he or she advises, it means they are just being given parameters. We have something later about parameters. I accept that in this area people such as me have had their case substantially weakened by the decision in the Sunday World case, and that was a regrettable occurrence.

  Deputy Brian Lenihan: There was nothing specialised about that.

  Senator David Norris: No, there was not. However, the law needs to be looked at and we should try to make legislation that is accessible to the citizen. Words should mean in law what they mean to ordinary people so that they might have an opportunity to read the legislation, understand it and, if they come within the ambit of a court, have some familiarity with what is going on. I am not sure this specialised use of language is at all helpful.

  Deputy Brian Lenihan: Senator Norris raises a very interesting point. I do not believe we have arrived at the transatlantic position where the judge can say virtually nothing to the jury other than in the form of a direction, which is the position in the United States.

When we use the word “direction”, we use it in a broader sense and resting on the principle that matters of law are for the judge and matters of fact are for the jury. Defining that boundary is a difficult exercise and one which judges must attempt to do. The direction refers to the principle that a judge directs the jury as to what the law is. This is an important principle in our legal system and must be reflected in our legislation.

Amendment, by leave, withdrawn.

Government amendment No. 42:

In page 23, to delete lines 24 to 28 and substitute the following:

“(j) if the defence of qualified privilege is pleaded, the extent to which the defendant has acceded to the request of the plaintiff to publish a reasonable statement by way of explanation or contradiction, and”.

  Deputy Brian Lenihan: Amendment No. 42 is consequential on the Government’s amendment approved on Committee Stage to ensure the correct reference is to all of section 16, on qualified privilege, rather than just section 16(2). It is a technical amendment.

Amendment agreed to.

[1766]  Senator David Norris: I move amendment No. 43:

In page 23, between lines 33 and 34, to insert the following subsection:

“(5) In the case of a successful defamation action, the Editor and Proprietor of the newspaper which published the defamatory statement shall be liable for damages.”.

This is a quite important amendment and I wish the Government had indicated it would take it on board. Senator Harris was waxing lyrical about the unfortunate position of people in newspaper offices and the pressures under which they came and he referred also to the storm of libel writs that harassed journalists. I am a journalist and a member of the National Union of Journalists. Of course, the trend is worrying to ordinary journalists but it should be made clear in the legislation that, in the case of a successful defamation action, “the Editor and Proprietor of the newspaper which published the defamatory statement shall be liable for damages”. It is a question of where the buck stops. It should stop with the proprietor and the editor and not the ordinary journalist.

  Senator Rónán Mullen: I second the amendment.

  Deputy Brian Lenihan: Senator Mullen should be careful in seconding all Senator Norris’s proposals because this one refers expressly to the editors and proprietors of newspapers who should not be singled out as a class in ordinary legislation when they are already comprehended by it. The position is that in any defamation action taken on its own merits, for example, in the case of a newspaper, it is possible to sue the journalist, the editor and the publisher. This is the case in existing law and will remain so under this legislation. There is no reason to single out the editor and proprietor as being uniquely venal potential defendants in the context of a defamation action.

  Senator Rónán Mullen: Having heard the Minister’s explanation, I am glad I seconded the amendment.

  Senator David Norris: I do not see why not; they are the ones with the money.

Amendment, by leave, withdrawn.

  An Leas-Chathaoirleach: Amendments Nos. 44 to 48, inclusive, are related and may be discussed together, by agreement.

Government amendment No. 44:

In page 23, line 39, to delete “may” and substitute “may,”.

[1767]  Deputy Brian Lenihan: I propose to take amendments Nos. 44 to 48 together because they are essentially linked. I agreed on Committee Stage to reconsider an issue raised by the Labour Party, namely, that the express permission of the court be required prior to a defendant being allowed to give evidence of any matter that might have a bearing on the reputation of the plaintiff in a defamation action. I am proposing to provide the requirement to obtain the leave of the court along the lines suggested by the Labour Party. It will send a signal to the courts that they must be careful not to admit prejudicial evidence in a particular context. Amendment No. 44 is a consequential drafting amendment.

  Senator Alex White: I thank the Minister for taking on board the points made on Committee Stage by my party on this aspect of the legislation. From what he has said, he appears to have taken on board our points very well. In such circumstances, I do not propose to press my amendment.

Amendment agreed to.

Government amendment No. 45:

In page 23, line 40, to delete “damages” and substitute “damages, give evidence”.

Amendment agreed to.

Amendment No. 46 not moved.

Government amendment No. 47:

In page 23, line 41, to delete “give evidence” and substitute “with the leave of the court,”.

Amendment agreed to.

Government amendment No. 48:

In page 23, line 45, to delete “give evidence”.

Amendment agreed to.

  Senator David Norris: I move amendment No. 49:

In page 24, between lines 3 and 4, to insert the following subsection:

“(7) In a defamation action the Press Council may make a recommendation regarding the reasonable parameters of damages and limitation thereto to be awarded in any case where the newspaper apologises in advance of the hearing. The court must take such a recommendation into consideration in assessing damages.”.

This amendment would give one tooth to the Press Council of Ireland, a significantly greater number than it possesses at present because all it is allowed to do is wag its finger at people such [1768]as Rupert Murdoch and say, “You are very, very naughty and you must never do it again.” I am sure Mr. Murdoch will have to call for the diapers when he is threatened with this sanction. In my amendment, at least, there is a provision that is very consonant with what the Minister is talking about, namely, advising and giving directions as to the scale of damages. The amendment provides that the Press Council of Ireland may make a recommendation regarding the reasonable parameters of damages. This is quite important, especially when the Minister and others, including the editors, feel some libel or defamation awards are excessive. The provision at least gives some guidelines from the statutory body established by the Oireachtas on the advice of the Minister for Justice, Equality and Law Reform to protect and advise in these areas. They body already has a quasi-judicial function in these matters.

I am surprised the Minister has not indicated he will accept my provision because it suggests the court should take into consideration this recommendation in assessing damages. It seems to establish an organic connection between the Press Council of Ireland and the operation of this legislation. I would have believed the Government would have welcomed it.

  Senator Joe O’Toole: I second the amendment. Senator Norris and I have not agreed completely on this Bill but there are a number of issues in respect of which we have managed to agree, including this amendment. It is very helpful and certainly does not interfere with the spirit of the Bill. It lends a raison d’être and gravitas to the findings of the Press Council of Ireland.

I am very supportive of the operations of the Press Council of Ireland, as I stated on other Stages of the Bill, and I do not have a difficulty with it. What attracted me to the proposed approach is that it has a certain precedent. The legal profession is not a major fan of the Personal Injuries Assessment Board, of which I am vice chairman, but in this regard the Minister will be aware that the legislation passed to establish the board included a requirement that the courts would consult the book of quantum which establishes limits to the damages or compensation awarded to those suffering from injuries. This amendment is similar to that requirement. It does not break any significant new ground and it would be helpful in creating a certain sense of connection between both bodies in a way that does not interfere with the power or authority of each.

I examined the proposal long and hard to determine whether it interfered with the courts system, bearing in mind that it would not cause interference in respect of the Oireachtas or any body that would give guidance to the courts. The amendment comprises an appropriate way to proceed and maintains a clear distinction between the operation of both bodies.

[1769]  Senator Rónán Mullen: I have no problem with the proposal. The giving of guidance on damages to be awarded is always desirable. The Minister stated he accepted the principle that an honest journalist can make a mistake but he appears to have made his statement in the context of talking about the section 24 defence. However, reasonable and honest mistakes should be taken into account when damages are being awarded.

7 o’clock

I also wonder, in the context of the recent Sunday World case which has occasioned considerable comment in this House, although I accept this is not the time for it, whether we need to have a debate on how damages are awarded in defamation cases and whether it should be a matter for juries at all. There is a case to be made — it will not be made today — that we should really think about whether judges are the ones who should make awards in libel cases. While I have spoken with a view to restricting some of the media’s privileges in this legislation, there is also an argument that sometimes members of the public act rather arbitrarily in the way they would treat the media which may have defamed. In any event, I support this amendment which, as Senator Norris stated, gives at least one tooth to the Press Council.

  Deputy Brian Lenihan: Of course, the entire Bill is about how one computes damages in a libel action. Specifically, section 29 sets out the standards to be applied and there is a list of matters which the jury must take into account in arriving at an award of damages.

Essentially, this amendment is trying to add an additional matter which should be taken into account, namely a recommendation of the Press Council. Senator Norris presented this as giving the Press Council some sort of teeth, although I fear it would give the courts a substantial toothache in their own teeth if one introduced this provision.

I will not take a point on the form of the amendment, but it is not clear to me that the amendment in its form respects the principle of the separation of powers because it appears to give undue weight to an opinion of a body, which is not a court or a judge under the Constitution, in the determination of proceedings.

I take Senator O’Toole’s point that the intent of the amendment is to set up a Personal Injuries Assessment Board system. Perhaps there is a case for the Press Council to set up a PIAB-type arrangement for libel claims. I see the arguments, but it would need to be worked out in far greater detail than this amendment. If the Press Council came forward with a suitable proposal I would entertain and consider it, but this proposal in its terms cannot fly, so to speak.

In response to Senator Mullen on the question of juries, the Supreme Court has stated the jury is the correct constitutional tribunal to determine issues of liability because the person in the jury [1770]box can make the judgment about whether the particular statement lowers the person’s estimation in the eyes of the right-thinking men and women of the community, and that is an important function the jury has in defamation matters.

On damages, Senator Mullen made the point that one can review the position of the jury there. Of course, the plaintiff has an option. The plaintiff need not seek a trial by jury. A plaintiff can seek trial by judge alone on defamation matters. It always amazes me how public figures put themselves at risk before a jury in defamation cases and why they do not opt to elect for trial by judge alone. Of course, if one opts for the Circuit Court and one opts to limit the upper end of one’s reputation at a designated monetary figure, then one has a trial by judge alone as well.

  Senator Rónán Mullen: I was thinking of the rights of the defendant.

  Deputy Brian Lenihan: The present law therefore gives the plaintiff an option and I would be reluctant to withdraw that option from a plaintiff.

  Senator David Norris: I hope the Minister’s comments will be drawn to the attention of the Press Council which may come up with some ideas. Obviously, the Minister has not scotched it or ruled it out entirely. Perhaps it could be ensured the Press Council is made aware of this so that it has the invitation from the Oireachtas and from the Minister in particular. In that light, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 50 not moved.

  An Leas-Chathaoirleach: Amendment No. 52 is an alternative to amendment No. 51. Amendment No. 53 is consequential on amendment No. 51. Amendments Nos. 51 to 53, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 51:

In page 25, to delete lines 37 to 40 and in page 26, to delete lines 1 to 43.

  Deputy Brian Lenihan: We are now discussing an obscure corner of the law, namely, the law relating to criminal libel. Section 35 relates to the proposal to establish an offence of the publication of a gravely harmful statement. I indicated on Committee Stage that I was considering this matter. On reflection, I do not think it is desirable to create a criminal offence of the publication of gravely harmful statement. It is a substantial intrusion on freedom of speech to say to any individual that he or she has published a gravely harmful statement for which one can be made [1771]accountable in the criminal code of this country. Therefore, I have decided to propose the withdrawal of that particular section.

Article 40.6.1º creates an offence relating to the publication of blasphemous, seditious or indecent matter. These offences are created in and form part of the Constitution. Sanctions for the offences of blasphemous and indecent matter, which include both fines and imprisonment, are contained in Part 2 of the 1961 Defamation Act. The sanctions for seditious matter are dealt with in the Offences Against the State Act 1939.

If we repeal in full the provisions of the 1961 Act in reforming the defamation laws, we create a gap unless some provision is made for the constitutional offences. We must be mindful also of the decision of the Supreme Court in the case of Corway v. Independent Newspapers in 1999 where the Supreme Court indicated a need to address the law on blasphemy. At this stage I would suggest our duty is to ensure there is no gap created in the case of these offences which are recognised by the Constitution. Essentially, there is a problem of timing. I am anxious to expedite the passage of this Bill. I note the Oireachtas Joint Committee on the Constitution has sought submissions from interested parties on issues concerning freedom of expression, including blasphemy.

At this stage, I propose to delete section 35 from the Bill — the Labour Party had tabled an amendment in that connection — and to reflect on what sanctions I provide for blasphemy and the publication of seditious and obscene matter. I will have to provide for a sanction and that is provided for in the 1961 Act. I will have to restate some provisions for a sanction for these offences but I do not propose to go beyond that. I do not think we need go beyond that in the context of legislating in this area.

One must bear in mind that in our law it is a criminal offence for a person to utter or publish words which are directly calculated to provoke a breach of the peace. A person who uses words of religious incitement at an occasion with the deliberate intention of formenting a breach of the peace commits an offence in our law. It is likewise with the publication of seditious or obscene matter. That should be borne in mind by anyone commenting on this provision.

I am constrained by the Constitution to provide for sanction. Candidly and as a personal opinion which I am not sure is shared by the Government, I do not see much prospect of a referendum on blasphemy, obscenity and sedition. We must provide for the penalties of these offences and I must reflect on that, provide for it in another place and come back to the House on it at that stage.

  Senator Alex White: It is an interesting decision of the Minister to drop section 35 in its entirety from the Bill. The rationale for his doing [1772]so is compelling. Obviously, the amendment my party has tabled will not be proceeded with because it was to amend one subsection of section 35.

On the Minister’s general argument, Senator Regan and I are members of the Oireachtas Joint Committee on the Constitution. The Minister was Chairman of the committee at one stage. I noted his frustration — it was said with a bit of a sigh — that he did not think there would ever be a referendum on the issue of blasphemy. I certainly hope that at some point we might find an opportunity, perhaps in a wider review of the Constitution where a number of proposals were put to the people dealing with some of these questions. The offence of blasphemy is problematic for all kinds of reasons, but I can express my views in that regard at the deliberations of the joint committee.

What the Minister proposes seems to make sense. Does he or the Attorney General have any concerns in respect of the balance with which we are now left, namely, that the constitutional offences remain but there are no sanctions in respect of them, and whether that will remain the position, even for the relatively short period for which the Minister hopes or perhaps the somewhat lengthier period than he hopes for?

  Deputy Brian Lenihan: I intend to bring forward proposals for sanctions in the Dáil and I will bring them to the Seanad. I have no option but to do that under the Constitution.

  Senator Alex White: I misunderstood what the Minister said. That makes sense. Under the circumstances, I will support the deletion of section 35.

  Senator Joe O’Toole: The reason I came here tonight was to talk on these two issues. I was having extraordinary difficulty reconciling the position on sections 34 and 35. I welcome that the Government, in an extraordinarily progressive move which has not been recognised outside of here, is taking libel out of the criminal area and making it a civil action. At the same time, section 35 appeared to provide for jailing people for certain types of libel. While I had strong sympathy with what was written into section 35 with regard to a person who knowingly and with the intention of causing injury to reputation publishes a false statement — I did not have sympathy for a person like that going to jail — I was trying to prepare an argument that would define and describe differently the crime of libel.

The Minister is to be congratulated. What we are about to do is significant, not just in Ireland but in western democracies. There is no democracy in western Europe which has removed libel completely from the criminal law area. This is a magnificent move and is a model for many emerging eastern countries where people are regularly put in jail for the slightest libel. This will [1773]stand the Minister in good stead when dealing with his colleagues in other European countries. It will also give him the right to talk about free speech and civil rights when dealing with emerging democracies.

I welcome this important move and hope the media takes note of it. It is a significant move and makes us the only European country to remove libel from the criminal law area. That should be recognised and welcomed. I hope journalists recognise it. This is an issue the National Union of Journalists and various international colleagues have raised in debate and consultation. It is something for which people like myself have fought over many years, namely, to achieve this balance between various kinds of rights. What the Minister has proposed is a step we need to take. He is also correct in stating that we need to examine the constitutional issues and how they might be responded to in civil law. It is worth a few bottles of champagne if the Minister can hold his position on this. I urge him not to be deterred by colleagues in Government when they come to recognise the importance of the decision.

  Senator David Norris: I echo the sentiments of Senator O’Toole. This is a significant move on criminal, seditious and obscene libel. Somebody raised the question of whether blasphemy should be also looked at in terms of the Constitution. It should. I remember a case 20 or more years ago in which Gay News was successfully sued by Mrs. Whitehouse. What was used in that case was a parallel offence of blasphemous libel. That nearly sank the newspaper, which would have been regrettable.

On the question of blasphemy, my view is that God, assuming he or she exists, is quite able to sustain slings and arrows of mere mortals in terms of his or her reputation. What people are usually doing when talking about blasphemy is protecting their own feelings. It is understandable that people have strong feelings, but this is covered by incitement to hatred. A number of columnists in one of the main daily newspapers regularly incite hatred against particular religious groups, particularly Muslims, but this can be covered by incitement to hatred. Like Senator O’Toole, I welcome what the Minister has done.

  Deputy Brian Lenihan: I did not expect such a welcome for a matter I thought was an exercise in common sense. I must warn Senator O’Toole that we still have three offences in the Constitution and out of respect for the Constitution I am obliged to provide penalties for those offences. All of those offences are subject to the sanction of the High Court before the offence can be prosecuted or proceeded with, which is a valuable safeguard. I am looking at the option of confining the penalty to the seizure of the offending item and seeing whether we need to go beyond that in the penalty clause.

[1774]There are difficult issues with a referendum. The House of Lords is currently examining in the legislative context the question of blasphemy and its possible abolition. In England and Wales blasphemy traditionally only consisted in the scandalising of the established church. It is probably the case in Ireland, with the enactment of the Article 44 provision in 1937, that blasphemy was extended to cover all of the denominations recognised in the Constitution and that in 1972 it passed into a stage where it extended itself to all theistic religions, since all theistic religions are honoured by the Constitution, although Christianity is uniquely invoked in the preamble.

Christianity in the general sense and, possibly, other theistic religions are protected by the law of blasphemy in our modern law. There has been no prosecution. The one attempted prosecution led to the Supreme Court consideration that we should consider modernising the law of blasphemy to protect all faiths. The difficulty in that regard is that the essence of the offence seems to consist of the hurt that is caused to the believer. This is a dangerous basis for an offence.

It is far safer to have an offence based on the incitement to hatred or the immediate proximity of the statement to the causing of a breach of the peace. If we could redefine blasphemy in that way and if that were acceptable, I would be much more comfortable with the offence. I am not sure we can do that constitutionally or whether the reference in the Constitution means it is frozen in time with the meaning it carried in 1937. The all-party committee can reflect on these matters.

Obscene libel and seditious libel are dealt with by the censorship legislation and the Offences against the State Act generally, in so far as they are mischiefs in society. There is a specific provision on seditious libel in the Offences Against the State legislation. The best I can do is to return to the House after the Bill has gone through the Dáil with the proposal for the sanctions that will apply to the constitutional offences.

Amendment agreed to.

Amendment No. 52 not moved.

Government amendment No. 53:

In page 26, to delete lines 44 and 45 and in page 27, to delete lines 1 to 25.

Amendment agreed to.

  Senator Eugene Regan: I move amendment No. 54:

In page 28, to delete lines 34 to 47 and in page 29, to delete lines 1 to 12.

This amendment is concerned with the novel provision that a cause of action for defamation can survive one’s death. I wonder whether this is a matter that would be best dealt with by the Press Council rather than legislation. I am not sure it [1775]is practical or reasonable. It carries with it the corollary that if there is a cause of action subsisting against a person, that action also survives against the estate, which would be a burden on a family after the person’s death. I appreciate the background to this legislative initiative but I wonder whether there is a better way of dealing with it than legislating for it in this Bill.

  Senator Alex White: I second the amendment.

  Deputy Brian Lenihan: It is Senator Regan’s amendment.

  An Leas-Chathaoirleach: Yes.

  Deputy Brian Lenihan: He seems to express a reluctance about it, which I share.

  Senator Eugene Regan: I am moving the amendment and am asking the Minister to consider it. I put it in reasonable terms whether there is an alternative way of dealing with the issue contained in this section. That is why I proposed its deletion. I suggest it might be better to have it dealt with by the Press Council on issues that arise of the type that has motivated this section.

  Deputy Brian Lenihan: I see.

  Senator Eugene Regan: I hope I have made myself clear.

  Deputy Brian Lenihan: If we deleted these sections, a cause of action could accrue in respect of defamation of a deceased person. That is the effect of the amendment proposed by Senator Regan, as I understand it.

  Senator Eugene Regan: That is not what I am proposing. I am not sure that is the implication of the acceptance of the amendment. If I understand the initiative set out, it is to provide for the survival of a cause of action on death. Perhaps the Minister can clarify that.

  Deputy Brian Lenihan: So a defamation action will survive the person’s death and the next of kin or executor can sue in the name of the deceased person and recover damages for that person’s estate?

  Senator Eugene Regan: And vice versa. I believe this is what is provided for in the Bill, if I understand it correctly.

  Deputy Brian Lenihan: Does the Senator want to delete this?

  Senator Eugene Regan: That is correct.

  Deputy Brian Lenihan: The provisions in section 38 are a modest advance on the current legal position whereby a cause of action ceases on [1776]the alleged defamed person’s death. Subsection (2) provides that a cause of action vested in a person immediately before his death shall survive for the benefit of his estate. However, monetary damages are not recoverable. Only special damages could be recovered. Subsection (3) provides likewise in respect of the alleged defamer. Should he be deceased, the cause of action survives against his estate, which is appropriate. My instinct is to preserve these particular provisions as they stand. They seem to be a reasonable compromise on this issue. I apologise for not understanding what Senator Regan said initially.

  Senator Eugene Regan: Does the Minister understand my suggestion now.

  Deputy Brian Lenihan: I do.

  Senator Eugene Regan: Preserving the cause of action after death is cumbersome and problematic. It is problematic from a legal point of view and for the surviving family because that is the corollary of the section. This is why I proposed its deletion and suggested that a reformulation where this type of matter could be dealt with by the Press Council might be a more appropriate procedure.

  Deputy Brian Lenihan: I misunderstood the Senator because of the reference to the Press Council. I now see exactly what his intention is. It is a new amendment that was not raised on Committee Stage. However, it is interesting and I must reflect on it. I will bring forward proposals in the other House if necessary.

  An Leas-Chathaoirleach: I cannot allow Senator Alex White to speak at this stage.

Amendment, by leave, withdrawn.

  Senator Lisa McDonald: I move amendment No. 55:

In page 30, between lines 19 and 20, to insert the following:

“(2) Any such order made under this section shall be for a period not to exceed five years.

(3) After the expiry period for each order the Minister shall conduct a review which will be laid before the Houses of the Oireachtas, together with a copy of any new or renewal order.”.

I ask the Minister to respond to this amendment.

  Senator Diarmuid Wilson: I second the amendment.

  Deputy Brian Lenihan: This matter was discussed on Committee Stage. Section 43 provides for the making of an order of recognition conferred on the independent Press Council pro[1777]vided it meets the standards set down in Schedule 2 to the Bill. The section requires both Houses of the Oireachtas to consider the matter. The order of recognition cannot be made without the approval of both Houses.

The Senator proposes that an order shall be for a period not to exceed five years and that the Minister shall conduct a review of the order. I believe the conditions attaching to the grant of an order of recognition as provided for in the Bill are adequate. The current construction of section 43 allows the Minister to review the activities of the Press Council at any stage after the recognition order is made and to take appropriate steps to amend or revoke the order if the Minister is of the opinion that the Press Council is not complying with the conditions attached to the order.

I do not think it is desirable to write in a fixed, prescribed period of five years or to require the Minister to conduct a review. The Press Council is independent but if there is a manifest breach of its obligations, it will come to the attention of the Minister and there is ample power to deal with it under the legislation as it stands.

Amendment, by leave, withdrawn.

Amendment No. 56 not moved.

  Senator Rónán Mullen: I move amendment No. 57:

In page 34, between lines 27 and 28, to insert the following:

“(3) The quorum for a meeting of the Press Council shall be 7 directors, a majority of whom shall represent the public interest.”.

This amendment seeks to provide something which I would regard as being something of an oversight from Schedule 2, namely, minimum requirements in respect of a Press Council. As things stand, there is no provision for a quorum. The Government went to great trouble to set out some excellent minimum requirements for a Press Council and specifically require that the number of directors of the council be 13 and that a majority should be representative of the public interest rather than the interests of the owners, publishers or journalists. I have proposed, therefore, that the law would require also that there would be a quorum for meetings of the Press Council and that this quorum would be seven. The key issue is that the majority of those present would represent the public interest for any meeting of the Press Council to be quorate.

I hope the Minister would look favourably on this proposal. It is reasonable and in keeping with the spirit of what is proposed, which is to provide an alternative means for people to have redress when they believe they have been treated unfairly by the media. For the Press Council to have credibility, it should be established that there would be a majority of members representing the public interest required for it to be quorate.

[1778]  Senator David Norris: I second the amendment. I am happy to support my colleague, Senator Mullen. This seems to be a very sensible thing. Most organisations and groups, including this House, have provision for a quorum. The James Joyce Centre, of which I am a director, and the Friends of the Library, of which I am chairman, have requirements to be quorate.

Senator Mullen is also very sensible to ensure there should be a substantial representative of the public interest so that one cannot have a meeting below a certain level that is dominated by the press interest. This is not a matter that will strengthen the Press Council. I already described the Press Council as having no teeth. I tried to insert one tooth and the Minister repelled my attempts at legislative dentistry. This is a very wise matter. I recognise that we are getting very close to the end of the Bill and I imagine the Minister will not be in a position to accept this. However, he may do what he has done on other occasions, namely, say it is something he will think about and introduce it as an amendment in the other House. It may then come back up to us. I am certainly very happy to support Senator Mullen in his intention.

  Senator Rónán Mullen: The Minister might surprise him by going even further.

  Senator Lisa McDonald: I also add my support to this amendment. It is a sensible suggestion that protects the decisions of the Press Council so that they cannot be put in the hands of vested interests. I ask the Minister to consider the amendment.

  Senator Alex White: If there is to be a quorum, it should be a requirement that the majority of the seven members of the quorum be public interest representatives. In those circumstances Senator Mullen’s proposal is not unreasonable. The Minister might suggest that type of governance issue might be more properly left to the Press Council itself — I cannot anticipate what he might say. It seems to have considerable sense that there should be a quorum. I imagine it will have a quorum anyway and if so it should reflect Senator Mullen’s proposal.

  Deputy Brian Lenihan: I note from the Bill that the Press Council comprises 13 members. I hope that is not an unfortunate portent for its future.

  Senator Rónán Mullen: Only if they meet at a party.

  Deputy Brian Lenihan: I subscribe to that superstition and I have never attended a political meeting of 13 within my organisation or created an entity of 13 within my organisation or party. Of course I have had to attend public meetings with 13 present. Senator Mullen has made an [1779]interesting point, worthy of examination and support. Some legislation provides for a quorum or at a minimum envisages the fixing of a quorum. As Minister I must be satisfied about the independence and procedures of the Press Council. It seems reasonable that there should be some legislative reference to a quorum. I do not want to tie myself down to the precise formula proposed by Senator Mullen. I take the point made by Senators that the public interest should be safeguarded in that respect also. I will examine the issue with care.

  Senator Rónán Mullen: I thank the Minister for taking that approach. I look forward to further discussion on the matter when the Bill returns to the Seanad.

Amendment, by leave, withdrawn.

  An Leas-Chathaoirleach: Amendment No. 58 is out of order as it involves a potential charge on the Revenue.

Amendment No. 58 not moved.

Bill, as amended, received for final consideration.

Question proposed: “That the Bill do now pass.”

  Deputy Brian Lenihan: I thank Senators for the very detailed consideration they gave this legislation. Towards the end of the life of the last Seanad a debate was initiated which excited great interest in this Bill. While I will not repeat my view of the Bill, it is a progressive and codifying measure. I hope it leads to a better relationship between the press and the people for the future. I found the contribution of the Seanad very useful and the legislation has been amended substantially in the course of discussion in the House. While the Committee Stage in the other House now takes place in a detailed committee, it is useful to have a Committee Stage in a full House and the Bill has benefited greatly from that. The amount of time given to the Bill on both Committee and Report Stages has been very welcome and helped focus my mind on the provisions of the Bill. They have helped improve it to a state whereby Dáil Éireann will not have very much more to do with it. I thank Senators for their contributions to this debate and for facilitating the passage of the Bill. There are some matters raised in the debate that will require attention in the Dáil and of course they will revert to the Seanad in due course.

  Senator Eugene Regan: I thank the Minister for devoting so much time to the Seanad on the Bill and for being patient with the various amendments tabled. I thank him for taking on board [1780]some of the suggestions made. There were some suggestions made today which, I hope, will be reflected in the revised Bill. On behalf of the Fine Gael group, I express appreciation for the manner in which the Minister conducted the debate.

  Senator David Norris: On behalf of the Independents I also thank the Minister for his courtesy and good-humoured informing of the Seanad on a series of matters. It is very appropriate that it should be this Minister, because I notice that the Bill was presented by his aunt, then Senator, now Deputy Mary O’Rourke. The nephew has completed the business. I am sure the aunt will be very pleased when it is reported to her no doubt sometime during the evening.

I welcome that the Minister consolidated the functions of this House by accepting some amendments. One should also compliment the officials who assisted in the matter. They have continued from the earlier debate before the general election. They had the job of drafting many of the amendments. As one who is occasionally a stern critic of certain aspects of the operations of the Department of Justice, Equality and Law Reform, I should put this on the record of the House.

I regret that the last amendment was ruled out of order, because I would have liked to see a more independent press council. I hope the issue of public interest will be further ventilated in the other House because it is very relevant. This morning Ms Clare Duignan on behalf of RTE said with regard to a particular controversial programme that she had taken the word of the film-maker. She said she was doing so because there were truths which were in the public interest. In so doing she prejudged the situation. She also closed her ears to the words of the people whose rights have been most vitiated, the young men in Kathmandu. I am afraid of this public interest section particularly if it is operated in that way. I welcome that this long day’s journey into night has ended.

  Senator Rónán Mullen: We still need to deal with the Human Trafficking Bill.

  Senator David Norris: I am afraid that is Senator Mullen’s problem. The Minister has done a good job. I do not agree with everything — that is the way legislation goes. I very much welcome that he has paid tribute to the work of the House in refining the Bill before it goes to the Dáil. We are frequently told, including in recent weeks, by several columnists that Seanad Éireann is a useless farce and that it never reforms legislation. A Minister has now indicated that we have done a good job on this Bill.

  Senator Alex White: Freedom of the press is a very important element of any democracy. This legislation has been vitally important to that debate and in securing a robust regime — if I can [1781]use that word — of freedom of expression in this jurisdiction. We know it also has an important constitutional underpinning. We have better tuned the balance that needs to be provided for as to a person’s good name and the important right of freedom of expression. The debate has been important in that regard.

There are many journalists, editors and, no doubt, newspaper and other media proprietors who do a very important and professional job. Much of what is published and broadcast offends people and much of it is offensive and in some cases reprehensible. However, we must uphold the right to freedom of expression given the important safeguards we have in our legislation and the restrictions that exist. These changes have not been brought about at the behest of any element of our society, whether newspaper editors, media barons or otherwise. The question of determining where the public interest lies is a matter for the Parliament of any country and not for any particular special interest, whether they be the owners of newspapers, broadcasters or anybody else. That is the basis on which I have approached this debate.

I commend the Minister on his willingness to listen carefully to what has been said on both sides of the House — even though our side has not always been in full agreement with itself. That has also contributed to the debate which has been intelligent and stimulating. The legislation going to the Lower House is much improved for that reason.

  Senator Lisa McDonald: I also thank the Minister for the time he gave to the Defamation Bill in the House. As the other Senators have said, he has taken a reflective approach taking into consideration the amendments that were given much hard thought and work by the various Senators. We have struck the right balance in the Bill between the person’s right to a good name and freedom of expression and speech. A column in one of last Sunday’s newspapers suggested that satire in the 1980s was not as much fun as it is now. We have come a long way in the past 20 years in our press and media. That is something we need to cherish because obviously we cannot go back to the way it was.

This Bill, which was long overdue, heralds a new era in defamation law and marks a balance between the media and the public. I think we have struck the right balance. I thank the Minister for attending the House.

  Senator Jim Walsh: I still have some of the reservations I had when the Bill was first introduced by the previous Minister, Michael McDowell. At that time, I found myself in an invidious position because, as Government spokesman on Justice, Equality and Law Reform, I was supposed to be promoting the Bill whereas I, along with others, was trying to get as much of it changed as possible. I still have reservations about it, especially [1782]with the court lodgement and the fact that it will not have an accompanying correction. The Press Council will not be independent; it is a product of the media themselves.

Having said that, however, I do not wish to be churlish. I acknowledge that the Minister listened to every item that was raised throughout the debate. He took on board many of the suggestions and amendments from both sides of the House, and we should be grateful for that. I also acknowledge that, as a Minister, he has that advantage but he also has the added advantage of experience of such cases from the Law Library.

On the previous occasion, Senator Norris and I were the only two Members to contribute to the debate. I suppose we developed a bit of an unholy alliance on this particular legislation.

  Senator David Norris: Very unexpected.

  Senator Jim Walsh: This brings me to a remark made during Private Members’ time last week, which I only realised had been made when I read The Irish Times the following day, when Senator Norris referred to me as “darling”. May I ask Senator Norris to be less effusive in his terms of endearment? I would give three reasons he might refrain from addressing me in those terms in future. First, it is probably unparliamentary; second, it certainly could give rise to a little bit of scandal; but, third, and most important of all, my wife strongly objects to anyone else calling me “darling”.

Question put and agreed to.